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

IV. 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.

A. 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.

B. 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 rights?

The reason is twofold. First, autonomy is sometimes understood simply as a synonym of freedom, so that complete sexual autonomy would indeed be a freedom to act on all one's sexual desires (a freedom no one has ever had). But there is a deeper current in the idea of sexual autonomy, which points to a similarly unattainable ideal.

For many, sexual autonomy means sexual "self-determination" (188): the "fundamental right" to define and express one's "sexual identity." (189) In this identitarian mode, the grail of sexual autonomy holds the heady liquors of sexual fulfillment, emancipation, and self-realization. It promises liberation from the invidious sexual pressures society imposes on us, whether repressive and discriminatory, or over-sexualizing and objectifying.

But guaranteeing everyone a right to sexual "self-determination" is quite impossible. First, one person's sexual self-determination will inevitably conflict with others': John's will require that he sleep with Jane, but Jane's will require otherwise. Second, the sexual self is heavily determined by forces beyond its control: for most of us, the basic constituents of our sexuality are givens, not choices. We broach here foundational problems in the theory of autonomy. It's worth taking a moment to see how philosophy has sought to answer them--and why those answers don't work for sexual autonomy.

Kant, arguably the most important philosopher in this tradition, had the only perfect solution: he eliminated these intractable problems conceptually. In Kant's thought, a person who acts on his desires, however freely and enjoyably, has not achieved autonomy; on the contrary, he is a slave to his own passions. Kantian autonomy is achieved only by a rational will that, transcending appetite and ambition, follows reason's self-given laws, and reason demands that agents act under universalizable rules (maxims that all could follow). (190) Thus, conflicting individual autonomies are ruled out a priori. Our desires invariably conflict; our autonomy never does. Moreover, a perfectly autonomous agent is perfectly self-determining, because the self is here conceived as a rational will giving itself law through reason alone.

Unfortunately, sexual autonomy defies this edifying solution. Sexual autonomy, at least as we understand it today, is not Kantian autonomy. It's all about desire--about exploring what you want and acting on your wants. What we call "sexual autonomy" would have been for Kant a degrading contradiction in terms. "Taken by itself [sex] is a degradation of human nature," says Kant. (191) "For the natural use that one sex makes of the other's sexual organs is enjoyment. ... In this act a human being makes himself into a thing, which conflicts with the right of humanity in his own person." (192) On Kant's view, "pure reason's laws of right"--and therefore autonomy--forbade sex altogether except in (heterosexual) marriage. (193) Needless to say, that's not what sexual autonomy means today.

It is tempting to think that Kant's autonomy can be easily modernized, stripped of obsolete moralities and updated with Freudian or other contemporary insights into the centrality of sex to who we are. From this point of view, a right protecting "the capacity to choose whether or how or with whom one will have sexual relations" could be said to derive from the very principle of autonomy that for Kant made sex dehumanizing. (194)

But once autonomy takes bodily desire as constitutive, the problems noted above reappear with a vengeance. One man's "capacity to choose whether or how or with whom [he] will have sexual relations" (195) will necessarily conflict with others'. Some limit, therefore, must be imposed on sexual liberty. The most common formulation is a "like and equal" principle: the sexual liberty possessed by each must be compatible with--or in some formulations, it must be the greatest possible sexual liberty compatible with--a like liberty for all. (196)

Observe that the like-and-equal-liberty formula does not provide any solution to the problem of how a self is supposed to determine itself when so much of itself is beyond its control. On the contrary, by taking the capacity to act on bodily desire as constitutive of self-determination, sexual autonomy makes this problem quite unsolvable. But at least the like-and-equal formula is supposed to adjudicate sexual conflicts in a way that delivers attractive results. Regrettably, it fails to do so.

After all, everyone could be given the right forcibly to impose their sexual desires on whomever they can. In this sexual free-for-all, everyone would have a perfectly like and equal liberty--indeed, the maximum possible like and equal liberty. Yes, this maximal liberty would be unlike and unequal in the degree to which different persons could exercise it; morally arbitrary qualities such as strength would be favored. But the same is true of the more palatable solution in which all are free to have sex with anyone who consents to it. Here, good looks will be favored, not to mention wealth. Multiple equilibria satisfy the like-and-equal formula, and the most expansive like-and-equal liberty would be a freedom to rape.

Consider, therefore, one more, equally famous way of limiting liberty under a principle of autonomy: the harm principle. This principle--that one person's autonomy does not give him a right to harm anyone else--might claim to deliver a clear prohibition of rape. But the harm principle is manifestly inadequate as a solution to sexual autonomy's problems.

Paradigmatic exercises of sexual autonomy routinely do serious harm to others. A's refusal to have sex with B can cause B acute suffering. Or A's agreeing to have sex with B can cause even greater suffering in C, D, and E. The idea that autonomy reaches its limit when its exercise harms another, taken seriously, would make sexual autonomy impossible.

Someone will say that the harm of hurt feelings is not the right kind of harm--not morally or legally cognizable. But this response is question-begging. Psychological harms are real; they are legally recognized all the time (pain, suffering, extreme emotional distress). More fundamentally, a proponent of sexual self-realization is particularly ill-placed to dismiss these harms. When A refuses B's sexual advances, A precisely does harm to B's sexual self-determination. The notion that such refusals do no harm is simply unavailable to a proponent of sexual self-determination as a fundamental right or core human interest.

Individual autonomy first takes hold of Enlightenment philosophy as a marriage of Christian morality and universal reason, in which the autonomous self transcends its body, its earthly passions. On this heavenly plane, no man's autonomy conflicts with anyone else's, and self-determination does not seek, impossibly, to determine the sells desires, seeking instead to escape desire altogether. But as modernity progresses, autonomy comes down from the heavens and insists that the self to be realized is the chthonic self--the desiring, preferring self. Reason now is no longer pure; it becomes instead the instrumental rationality that calls on an agent not to act under universal laws, but to maximize satisfaction of his preferences. Modern individual autonomy becomes a battle waged on earthly terrain, fought out among real-world persons with real-world desires.

The irony and paradox is this: brought down from the heavens, sexual self-determination becomes utterly mythical. We can neither determine our own desires nor avoid the interpersonal clashes of desire that necessarily pit one person's sexual autonomy against others'.

2. And Its Undesirability

But the problem with individual autonomy, as applied to sex, lies not only in its demand for control over what cannot be controlled. Individual control is simply the wrong demand. Indeed individuality itself is in a sense the wrong demand.

No self can do without a boundary separating it from others. This boundary presents itself to us first and foremost as physical in nature, demarcated by our bodies. But autonomy and sexuality are situated very differently with respect to this boundary. Autonomy jealously guards it, fearful of every puncture or penetration. Sexuality, by contrast, desires nothing other than this boundary's violation, both physically and psychologically.

Consider sexual love. Not all love is sexual, and not all sex is loving, but love is undoubtedly an important dimension of human sexuality, and nothing so bursts the confines of individual autonomy as love. Love dissolves the very framework of individuation in which autonomy would operate. The other's pain becomes our pain; the other's happiness our happiness; the other's fate our fate. Love wants the other united with the self, and it wants the other to want that same unity. In this way love desires a rupture--indeed it may effect a rupture-in the boundary between self and other. That's why love, for Freud, was so deep a threat to ego. (197) and egoism a threat to love. Bodily integrity, on which individual autonomy depends, is not love's ideal. On the contrary, the disintegration of individuality is precisely what love desires.

Love and individual autonomy are in this respect strangers, speaking for different sides of human nature, for different kinds of human desire. Autonomy speaks for the ego, for control, for rationality and self-determination. Love speaks for the self that wants irrationally or a-rationally to break the ego's boundaries. It speaks on behalf of one sews intermingling with another, with all the mystery and loss and gain that might entail.

But love is not necessary to make sexuality at odds with autonomy. Indeed the case is almost stronger when sex is mixed with power or domination, rather than or along with love. Those who find another's power sexually interesting are very unlikely to be seeking, at least in any simple sense, their own individual autonomy. They find satisfaction in surrender or submission. As opposed to the 'T' of pure reason, the desiring self is constituted by an ineradicable other-directedness--by a desire, as Hegel suggests, not only for another's body, but for something from the other's subjectivity, whether love, fear, control, submission, or something else altogether. (198) Individual autonomy is the last thing sexuality wants. From autonomy's point of view, sexuality is undesirable. From sexuality's, autonomy is.

3. Sexual Autonomy as a Right Against Wrongful Conduct

But what about a much thinner concept of sexual autonomy? Suppose autonomy has nothing to do with an agent's actual capacity to act on or realize his will; suppose it requires only that he be free from the wrongful imposition on him of anyone else's will. (199) Sexual autonomy would then eschew the rich fulfillment of sexual emancipation and self-realization, insisting only on a right against others' wrongful sexual impositions.

Unlike thick sexual autonomy, a right against sexual wrongs is not unattainable. Some such right is indispensable. It underlies the crime of rape.

But autonomy is the wrong concept for this right. For one thing, do we really want to describe a homeless man without the use of his limbs, shunned by society, kept alive by scraps of food thrown at him every now and then, as perfectly autonomous--and in particular, as sexually autonomous? Thin autonomy would have it so. (200) In any event, thin autonomy can't be rape law's principle for the simple reason that it can't distinguish between force and fraud.

So long as wronging is understood in autonomy-based terms--as the imposition of one person's sexual will on another without the latter's consent--deception should be as wrongful as force. (201)

Autonomy, whether thick or thin, can't be rape law's principle. It can't explain why sex-by-deception differs from sex-by-force. Neither the like-and-equal liberty principle nor the harm principle can solve this problem. The next Part offers a principle that may do better.

V. FROM AUTONOMY TO SELF-POSSESSION

So: if we jettisoned autonomy as sex law's lodestar, what would the consequences be ?

To begin with, we'd have to acknowledge that American sex law is not so unified after all. Cross-currents abound. Autonomy animates some sex regulations, but not others-which is as it should be. Colleges, for example, should be free to pursue norms of "informed consent" and "positive sexual experiences" not reflected in criminal or constitutional sex law.

At the same time, new congruences might emerge. For example, consider again the abolition of the crime of seduction, which, when defined to require a false promise of marriage, was a form of sex-by-deception. (202) Decriminalizing seduction is not a legalization of consensual sex. Instead, it's closely tied to rape law's refusal to punish sex-by-deception-and neither of these phenomena is well understood in the language of sexual autonomy.

Prostitution laws furnish another example of a contemporary sex crime potentially much better understood when the rhetoric of sexual autonomy is stripped away. While prostitution laws can in theory be understood as vindicating autonomy (on the ground that prostitutes lack free will), that explanation has never been very strong. (203) American sex law remains deeply moralized. Exploding the myth of sexual autonomy may open up more powerful insights explaining which sex crimes the twentieth century decriminalized, and which it did not.

But by far the most profound consequence of jettisoning sexual autonomy would be the conceptual vacuum it would create for rape law and the right to privacy. How is rape to be defined if not as unconsented-to sex? Can Lawrence be saved if there is no such thing as a fundamental right to sexual self-determination? This final Part tries to answer these questions.

A. Sexual Autonomy's Irrelevance to Rape Law

We might think that modern rape law must protect sexual autonomy. Isn't every rape a violation of autonomy? What else could rape law possibly protect once female virtue is taken out of the equation?

In fact, sexual autonomy is a red herring when it comes to rape. Seeing why will point the way to an alternative principle. Imagine two friends debating whether individuals have a fundamental right of "smoking autonomy" (meaning something like a right to smoke if and as one chooses). John, a cigar smoker, claims there is such a right. Jane, a nonsmoker, denies it. John says smoking is central to and expressive of his identity; Jane says no one has a right to inflict on others unpleasant and perhaps harmful smoke. In a subtle parry of Jane's nuanced logic, John physically forces her to smoke the cigar against her will.

Now: are we obliged to say that Jane was wrong--that there is a right of "smoking autonomy"--in order to conclude that she had a right not to have a cigar stuffed into her mouth? I don't think so. What makes John's act wrongful has nothing to do with whether it violated Jane's supposed right of "smoking autonomy"--a concept we might want to reject altogether. In other words, "smoking autonomy" is wholly irrelevant to the wrongness of John's act.

So too with "sexual autonomy" and rape. No one needs to believe in "sexual autonomy" to be against rape. Sexual autonomy is irrelevant to rape law.

Autonomy is the sort of thing that's "infringed." Rape is not a mere "infringement." We might as well explain torture as an infringement of the victim's "bodily autonomy"-his right to do what he likes with his own body. Some evils go beyond the infringement of autonomy. Their wrongfulness and harm cannot be captured in terms of nonconsent, even though consent will typically be lacking.

B. Rape as a Violation of Self-Possession

There is a simple lesson in the case of the cigar. A difference exists between an autonomy right to engage in an activity if, as, or when you please, and a right not to have that activity affirmatively pressed on you against your will. What is the nature of the latter right?

There is no universal right against being forced into activity against your will. You can be made to pay taxes. When can people have actions forced on them, and when can't they?

It might be tempting to invoke Kant again and to say that forcing an activity onto someone is wrongful when it uses them-or treats them as an object, or merely as a means. But such formulations, while frequently advanced in connection with rape, (204) cannot serve rape law's purposes. Lying uses people too. And if a wife rolls her sleeping husband over to stop the dog from leaping onto the bed, she may treat him solely as a means and an object, but her act involves no serious wrong--nothing remotely comparable to rape.

The key concept, then, for rape law, is not objectification. Rather, I will suggest, it is self-possession.

By self-possession, I don't mean perfect self-control or composure. I'm referring to a self-possession far more basic-and more physical. Self-possession, as I will use the phrase, refers to the possession of one's own body.

In rape, to state the obvious, something unusual is done to a person's body. A rape victim's body is taken over, invaded, occupied, taken control of--taken possession of--in a fashion and to a degree not present in ordinary acts of theft, robbery, assault, and so on. The fact that the rapist uses the victim's body for sex is central here--violent sex, especially penetrative sex, forced on a victim against her will, is a taking of the body, a possessory act--but forcing sex on people is not the only way to take possession of their bodies. Rape is only one of several crimes that violate what might be called an individual's right to self-possession.

This Article is not the place for a full discussion of this right. In brief, however, self-possession is not a property right. You don't own your body the same way you own a car. Rather, bodily possession is a matter (like most forms of possession) of physical control. While no one fully controls his body-our mastery of our bodies is partial in a thousand ways and absent in a thousand more-almost all of us enjoy a basic integration of mind and body that gives us an irreducible measure of physical governance over our bodies and makes our bodies our own. Although normally taken so for granted that we are not even aware of it, this bodily self-possession is central to our selfhood and intimately connected to dignity. (205)

Dignity, however, is possessed in degrees; it's something you can have more or less of. By contrast, self-possession is (again, like most forms of possession) binary; you either have it or you don't. It's not easy to be dispossessed of your body (just as it isn't easy to be dispossessed of a house in which you remain an occupant). You lose self-possession not when another person merely wounds, embarrasses or constrains you, but when the other actually takes over your body-exercising such complete and invasive physical control over it that your body is in an elemental sense no longer your own.

The best way to explain how self-possession can be violated is to observe two acts that paradigmatically do so: enslavement and torture. In both slavery and torture, another individual becomes master of the victim's body. With slavery, this mastery consists of a power to force the victim wholly and bodily to serve the other: to please the other, to be occupied with any task he commands, to exist for his purposes and his satisfaction. With torture, mastery consists of a power to inflict on the victim such excruciating pain, suffering, or terror that the victim's own bodily self-governance is nullified and sundered. In both cases, the victim's body becomes--not metaphorically, but physically and actually--someone else's possession.

The same is true of rape. In fact, on this dimension, rape is very close to both slavery and torture. Like slaves, rape victims are made bodily to serve another's pleasure--to exist, if briefly, only for his satisfaction. Like many torture victims, rape victims' bodies are immobilized, penetrated, exposed to wanton bodily cruelty or death, and their extreme pain and fear is often part of what the perpetrator seeks to achieve. Rape may not in every case be an act of enslavement, (206) and not every act of rape literally involves torture, (207) but the similarities are unmistakable. It is no coincidence that when women are enslaved or tortured, sexual abuse is the norm.

Rape, we might say, is poised halfway between slavery and torture, sometimes more like the one, sometimes more like the other, always sharing core elements with each. In particular, rape shares with slavery and torture the same fundamental violation. The victim's body is utterly wrested from her control, mastered, possessed by another. (208)

Suppose, then, that we thought of rape as a violation of self-possession, on a par with slavery and torture. How might this view help solve rape law's core problems?

C. Rape Law's Core Problem Revisited

Every attempt to say what distinguishes rape from other assaults has a complex problem or dilemma to solve. On the one hand, it has to be adequate phenomenologically, not merely philosophically, capturing in some way the acute experience of violation rape victims may actually feel. On the other, it has to avoid the opposite trap--that of exaggerating or presupposing rape's ruinous effect, thereby falling back into old moralities of sexual defilement. Seeing rape as a violation of self-possession offers a way to cut this Gordian knot.

Consider the following story:

   In 1974, when Ms. Xenarios was 28 and working as a city social
   worker, she was raped on a sunless day on a rooftop in Harlem.

   It was just before Thanksgiving--she has blotted the exact date
   from her memory--and she was about to interview someone in the
   urgent case of a baby missing from Harlem Hospital Center. She said
   a man grabbed her in the stairwell of an apartment building and
   held a knife the size of a switchblade to her neck.

   Fevered, frantic and spitting racial insults, the man forced Ms.
   Xenarios, who is white, to the rooftop. She did not scream but said
   to him, "You really don't want to do this. ..." The man said he was
   going to throw her off the roof. He raped her.

   Without explanation, the man let her live. He fled. Ms. Xenarios
   walked unsteadily down the stairwell and attended a previously
   scheduled social-work meeting at the Harlem hospital. At
   mid-meeting, she collapsed in grief and torment. (209)


These facts can barely be distinguished from thousands of other rapes suffered by thousands of other women. Given the prevalence of rape in our society, the case might not even seem shocking. What happened to Ms. Xenarios did not prompt a congressional hearing (210)--but it was more than enough. The story continues:

   She was immediately taken to the emergency room. One thing she
   remembers is a doctor and a police detective interviewing her as
   she lay exposed from the waist down for a gynecological
   examination. The man was never caught.

   ....

   She told her new husband, Giorgos Xenarios, a Greek painter she had
   met after living in Greece, about the rape. "A lot of my energy was
   focused on helping him with this because there's enormous shame and
   losing face" attached to the husband of a rape victim in
   Mediterranean culture, she said. (211)


Why tell this story? To get at the root of modern rape law's problem.

Here is one reading of Ms. Xenarios's story. Her husband's "shame" is inexcusable: how dare he feel that his wife, being raped, is now a source of shame to him? The police detective's indifference is also inexcusable, as he subjects the raped woman to a visual violation--interrogating her even as she lies exposed and naked--grotesquely similar to the physical violation she has just endured. Only the woman's reaction, her "grief and torment," is right and justified and deserving--and all the worse because she has to suffer it alone.

But here is another reading. The woman's grief and torment are as unjustified as the husband's shame. In fact her reaction is little different from his. Both react as if she's been "ruined" and "defiled," as if the rapist succeeded in inflicting permanent and fundamental damage to her soul just by virtue of inserting one part of his body into hers. Both reactions are the residue of that obsolete moral worldview in which sex ruined a woman, took away her virtue, made a whore of her. Ironically, on this view, only the detective's reaction--his indifference to her psychic injury and nakedness--is right and justified.

This second reading-not one I accept, but one that requires a response-returns

us at last to modern rape law's core problem. If today we see in rape something different from and worse than most other assaults, do we invest rape with the disgrace, the shame, the power to ruin, that the old law used to attribute to it?

Feminists have been of two minds on this question for a long time. On the one hand, there is the need to credit rape victims' own experience of the crime, to appreciate the seriousness of rape's harm and psychological impact, to speak out against its outrageousness. (212) On the other, there is an equally feminist impulse not to oversell rape's violation, as if every rape "murders" a woman's "soul" or inflicts an irreparable injury redefining its victim for the rest of her life. (213)

Both inclinations are understandable. And both are necessary; either without the other is one-sided. Doubtless the horror attaching to rape in contemporary culture still reflects a measure of the old defilement moralities. (214) But the idea that there is no distinctive violation inflicted by rape whatever--that it is just another assault, like being punched in the stomach--goes too far in the other ideological direction. Sex is not specially central to virtue or self-definition in the way the old moralizers or the new identitarians both suppose. But forcing sex on someone against her will is a special kind of harm. The concept of self-possession helps explain why.

Rape victims suffer, against their will, the condition of belonging bodily to someone else, of having their bodies possessed by someone else. Rape victims are forced to submit their bodies to the rapist to serve his gratification. Their own helplessness, fear, and pain may themselves be a cause of pleasure to him. (215) Like slavery and torture, rape is not "moral ruin" or "soul-murder"--ideas that impute to the rapist a moral power he doesn't wield and to rape an irreparable damage it needn't do. But for however short a time, rape victims are no longer their own person-a condition vital to selfhood. It would not be surprising if rape victims felt this brutal loss of self-possession. There are worse things in the world than rape, but it may not, after all, be so far off to see in rape an "ultimate violation of self." (216) The loss of self-possession explains why rape is different from other assaults, and it does so without dependence on sex-defilement moralities.

D. Self-Possession and the Right to Privacy

Shifting rape law's focus from autonomy to self-possession would actually put rape law into a profound congruence with the right to privacy. In earlier work, I have suggested that the constitutional right to privacy for which Roe v. Wade stands was never well understood as a right to self-determination or self-definition, but has always been much closer to a right against being instrumentalized in a particularly totalizing way--a right against being forced into state-dictated service. (217)

The argument for a forced-servitude reading of Roe is simple. A law banning abortion forces a pregnant woman into motherhood against her will. It conscripts her for as much as nine months (and arguably much longer) into a particular, life-occupying role. (218) The principle it violates is the same one that would forbid a state from dictating to people their occupations--not because the law violates a right to self-definition, but because it violates the right not to be forced into state-dictated service against one's will. A great deal of right-to-privacy case law fits within this principle. (219) And this principle is closely connected to the right of self-possession; the body of a woman denied an abortion is also taken over and occupied against her will.

Where does this leave Lawrence? It depends on how we read that case.

If Lawrence is read as a pure sexual-autonomy case, then according to the arguments laid out above, Lawrence is wrong. There is no constitutional right to sexual autonomy. Or again, if Lawrence is taken as a pure libertarian decision--holding that states cannot criminalize homosexuality because "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" (220)--then Lawrence is also wrong. The Constitution does not enact Atlas Shrugged any more than it enacts Social Statics.

But equality and invidious discrimination were also in play in Lawrence--very obviously so. (221) If Lawrence comes to stand for an equality principle, then nothing I have said counts against it. Readers who believe that states cannot constitutionally criminalize consensual sex should have a serious problem with the account of privacy being offered here. (Of course they should also have a problem with laws prohibiting prostitution, incest among adults, and public sexuality. (222)) But readers who believe that Lawrence can be defended on equal protection grounds should not.

Whatever the fate of Lawrence, we are now in a position to return to rape law. If rape is seen as a violation of self-possession, comparable to slavery and torture, then a new understanding of rape law, with concrete implications for rape doctrine, comes into view.

E. Self-Possession and Force

To begin with, return to the problem of deception. When rape law takes autonomy as its central value, and rape is compared to trespass, theft, or other consent-based crimes, the exclusion of deception (as a means of committing the crime) seems like a riddle, an unjustifiable exception. But this exceptionality disappears when rape is instead laid alongside slavery and torture.

"Slavery-by-deception" is no more slavery than rape-by-deception is rape. Imagine a person working at manual labor sixteen hours a day because he was lied to about how much money he will be paid or what sort of project he is contributing to. He is the victim of fraud, not slavery. Similarly, a person made to confess on the rack is tortured, but a person made to confess through a ruse in which his interrogator masquerades as a confederate is not.

Slavery, torture, and rape all resist deception in precisely the same way because they are all crimes against self-possession. A fraud victim retains his basic bodily self-governance. He is manipulated, but his person--elementally, physically-remains his own. Fraud is an offense against autonomy, not self-possession.

Now consider the force requirement. Once again, held up against the standard of autonomy and juxtaposed with trespass, theft, and so on, rape law's force requirement seems perplexing and anomalous. But placed next to the law of slavery and torture, rape's force requirement is wholly unexceptional.

Thirteenth Amendment doctrine, for example, has a force requirement very similar to that of rape law. As the Supreme Court has put it, reconfirming a long line of precedent, the "Thirteenth Amendment prohibition of involuntary servitude" applies only to servitude "enforced by the use or threatened use of physical or legal coercion. The guarantee of freedom from involuntary servitude has never been interpreted specifically to prohibit compulsion of labor by other means, such as psychological coercion." (223)

The Thirteenth Amendment's force requirement is no accident. It conforms with our basic understanding of what slavery is--and with the right to self-possession. If the only power a master held over his slaves was the power to fire them from their labor, his slaves would not be slaves. They would be employees. It's precisely this bodily freedom to walk away from a job that (at least in principle) leaves the employee a free man, self-possessed. Out of work, he may be poorer, but he will retain the basic governance over his own body that self-possession requires. That's the sense, for better or worse, in which all employees (as opposed to slaves) remain fundamentally their own persons.

But if the master makes his employees continue at their labor by chaining and whipping them, they are no longer employees. They are slaves, and the reason is that no self-possession now remains open to them. Their bodies are no longer their own. If they don't "voluntarily" submit to bodily servitude, they will be physically incapacitated and beaten until they do submit (or until they're dead).

Torture is similar. Under federal law, torture is the intentional infliction (or attempted infliction) of "severe physical or mental pain or suffering" on a person in the "custody or physical control" of the torturer. (2240 Inflicting physical pain is an obvious act of force, and "mental pain or suffering" is further defined to cover exactly four situations that also involve force (including threats of force). (225) International law may be more receptive to claims of purely psychological torture, but the kinds of acts envisioned by those who champion a broader definition of psychological torture--for example, prolonged isolation, gross sleep deprivation, placing a victim in a box with animals that terrify him--involve at a minimum custody, imprisonment, and incapacitation, which are all acts of force. (226)

Thus does the right of self-possession offer rape law what it has always lacked: a legal and theoretical framework in which the force requirement finds its proper place and explanation. As with slavery and torture, so with rape: when law protects the fundamental right of self-possession, it demands bodily force. The simple reason is that the violation of this right consists in another person mastering and taking possession of the victim's body, wresting away the victim's elemental control over her own person, and where there is no force, there is no such mastery or taking.

F. An Objection: Self-Possession a Floor, Not a Ceiling

"You haven't provided a justification for the force requirement at all," it might be said. "You seem to have forgotten something obvious. Nonviolent sexual predation may not be a loss of self-possession in your sense, but states can still criminalize it. Rape law is free to prohibit more than the bare minimum."

This objection is of course correct. States are perfectly free to criminalize forms of sexual imposition other than forcible rape. Nevertheless, once we see that violent rape violates a fundamental right--the right to self-possession-we can finally explain the distinction, which our law systematically tracks yet can't account for, between sex violently forced on a person against her will, which is invariably recognized as rape, and non-forcible sex, including sex-by-deception, which is not. States may criminalize all sex-by-deception if they choose, but violent rape violates fundamental rights in a way that sexual deception doesn't, offering a justification to states that choose to stick to the force requirement.

G. Doctrine

In this last Section, I'll spell out a few doctrinal implications of rape as a violation of self-possession. This view makes many problematic cases easy--deception cases, for example. (227) But I won't discuss easy cases here. Instead I will take up some harder issues. My purpose is not to show that a self-possession view of rape eliminates all difficulties (it doesn't), but to test the limits of this view, to see what light it sheds on controversial issues, and to acknowledge that it will sometimes lead to uncomfortable results.

1. Defining Force

"Force" is hardly self-defining. Psychological forces could be included; so could pecuniary forces. Anything that results in coercion, it might said, should count as force. For example, shouldn't a high school principal who threatened to expel a seventeen-year-old student unless she had sex with him be found to have used force for rape law's purposes?

An understanding of rape as a violation of self-possession says no. This result conforms with existing law in some states. (228) It will not, however, conform with many readers' intuitions.

But a coercion rule for rape law is pretty difficult to sustain. To begin with, as seen earlier, coercion-based theories of rape run headlong into the rape-by-deception problem. Coercion matters because it renders the victim's consent not genuine, meaningful, or valid. But as we know, the same logic applies to deception. If all coerced sex is rape, all unconsented-to sex ought to be rape, including rape-by-deception.

Moreover, imagine a young woman who threatens to break up with her boyfriend unless he violates his religious ban on sex until marriage. Breaking up would devastate him, so he sleeps with her. Nearly everyone will say the boy wasn't raped, but he was coerced, wasn't he? He was made to have sex through a threat with devastating consequences. (229)

Neither coercion nor consent has ever been able to explain why sex induced by deception, by a threat to break off a relationship, or by any other nonviolent undermining of autonomy isn't rape. Self-possession can. Only sex coerced through bodily violence wrests from the victim her fundamental bodily self-possession--and is therefore rape.

Return now to the notorious Mlinarich case, (230) in which a fourteen-year-old girl submitted sexually to her guardian because he had threatened to send her back to juvenile detention. The judges who overturned Mlinarich's rape conviction evidently believed that imprisonment did not amount to the kind of force required for rape (231)--an idea that goes a long way back in rape law) (232) Rape as a violation of self-possession rejects this holding, and the comparison to torture and slavery is helpful here. Imprisonment, as noted in the case of torture, is itself an act of physical force; moreover, imprisonment was among the forms of violence notoriously and characteristically directed at slaves. Keeping laborers at work through a threat of imprisonment turns employment into slavery. Sodomizing a girl through the same threat turns sex into rape.

As a general rule, we might say that sex is rape whenever exacted through the kind of force that turns labor into slavery: roughly speaking, physical incapacitation, whether through restraint or imprisonment, or serious physical assault (or the threat of either). Absent such force, sex under conditions of power imbalance, material want, or psychological pressure isn't rape. If it were, sex would very frequently--perhaps ordinarily--be a criminal offense.

2. Masochism, Wantedness, and Mistake

Historically, rape law has understood consent as a mental state, a state of wanting or desire, so that judges often disregarded what women said, asking instead if they were inwardly "willing." (233) Thus were rape victims frequently put on trial, with defense counsel probing their sexual past, and defendants exonerated by raising a doubt about whether the complainant "wanted it."

Rape as a violation of self-possession offers a clear improvement. Whether the complainant wanted or consented to sex is a question that sounds in sexual autonomy, not self-possession. Rape as a violation of self-possession doesn't ask whether the victim wanted or consented to sex. It asks instead whether the victim consented to the violence to which she was subjected, and this consent refers to a communicated permission, not a mental state of desire or willingness. (234)

In this way, rape as a violation of self-possession also offers a simple approach to sadomasochistic sex. Ascertaining consent to sex in sadomasochism can be problematic. Yes, "safe words" can be employed, but maybe the parties don't play the game that way. Perhaps some people precisely want their sexual refusal to be overridden. In any event, if the question is whether each person currently consents to each sex act engaged in, the answer can be difficult to determine when one of the parties is gagged and bound.

Rape as a violation of self-possession would ask whether the violence was consented to. Does this place a special burden on sadomasochistic sex, requiring an affirmative grant of permission (by word or conduct) for any violence used? Yes. People had better get each other's permission before binding, gagging, whipping, and so on. If they do not, they commit rape. On the other hand, if a person does consent to be bound and gagged, then decides later that he does not want sex after all, but can no longer express it, he has not been raped-because he consented to the violence, even if he ends up (arguably) subject to unconsented-to sex. (235)

Consent to violence is not as subject to mistake as is consent to sex. Whether a person wanted sex may be easily put in question; whether a person affirmatively gave her permission to be bound, cut, whipped, threatened, and so on, is more difficult to make an issue of. To be sure, mistake cases would still arise. In particular, there will always be cases in which one person fears violence (or says so) but the other intended no threat (or says so).

The only question in such a case should be whether the person claiming rape reasonably believed the other's words or actions communicated a threat of serious violence if she refused to sexually submit. It makes no difference whether the perpetrator believed his victim wanted sex with him, or whether in fact he intended no harm. A man who knowingly uses words or actions reasonably likely to induce a fear of violence, and then procures sex as a consequence, does so at his peril.

3. No Means No-but It May Not Mean Rape

What about sex in the face of a "no"? The appealing position here is categorical: sex in the face of a clearly articulated "no" is always rape. Unappealingly, rape as a violation of self-possession would not be able to take this position. This point will probably be reason enough for many readers to reject the entire argument made so far. Unfortunately, I see no way out.

According to some reports, women frequently have sex after first saying "no." (236) If men force this sex on women through violence, they of course commit rape. Or if they put the woman in fear of violence, they also commit rape. Often, then, a force requirement will be satisfied in such cases. But not always.

The issue is not hypothetical. In a well-known case called Berkowitz, a rape conviction was reversed where an undergraduate male had pressed forward with sexual activity, culminating in intercourse, even as his female classmate repeatedly "moaned. ... no"; there was no allegation of violence or threatened violence in the case, the door to the room was unlocked, and the woman knew it was unlocked, so that she would have been free to leave at any time prior to intercourse. (237) Many find Berkowitz deeply offensive. (238) But depending on the facts, rape as a violation of self-possession could accept this outcome. The point is not that the victim failed to resist, that her "no" meant yes, or that the defendant might have so believed. The point is simply that where there is neither violence nor fear of violence, where the victim could have walked away at any moment, there has been no violation of self-possession.

The claim that a "no" meant yes belongs to the vocabulary of sexual consent. It tries to establish that sex was wanted. As I have said, rape as a violation of self-possession does not ask that question. It asks whether the victim was forced into sexual submission, and the fact that sex took place while a person was saying "no" doesn't prove force. People are quite capable of voluntarily taking an action, or voluntarily participating in it, even as they say--and mean--"no." (239)

Accordingly, absent physical restraint, overpowering, violence, or the threat of violence, rape as a violation of self-possession would fail to give "no" the categorical rape-creating effect a consent-based conception might give it. A counterargument might be that the law needs a bright-line rule--"no means rape"--to protect against much worse assaults and violations. This may or may not be a good argument, but it concedes the main point. Someone who says that sex over a "no" must be called rape for purely prophylactic purposes admits that the "no" itself does not turn sex into rape.

4. Unconscious, Underage, and Intoxicated Sex

A final difficulty concerns sex with individuals who because of unconsciousness, age, or intoxication may be deemed "incapable of consent." In another embarrassment for the picture of rape described here, rape as a crime against self-possession would not cover some of these cases.

Take unconscious sex. Under prevailing law, sex with an unconscious person, including someone asleep, is ipso facto rape (240) because rape is understood to be sex without consent, and the unconscious cannot consent)41 Rape as a violation of self-possession would not be able to take this position.

If one person knocks another out (whether by violence or drugs) and takes sexual advantage of the unconscious body, there is clearly sex by force. But in other cases, the result might not be so clear. Yes, I could say that every act of sex with an unconscious body is inherently violent, making the force requirement consistent with prevailing law. But really: is it so clear that all unconscious sex should be criminal? Among well-settled couples, long used to sharing the same bed, sexual contact of various kinds with a sleeping person is common. No one thinks all such touchings are criminal. Doesn't this undermine the idea of an ipso facto rule against sexual contact with the unconscious ?

Sexual penetration of an unconscious stranger (or mere acquaintance) should certainly be a crime. But it/s a crime under traditional assault-and-battery law). (242) The question is whether every penetration of any unconscious body necessarily inflicts the profound violation of rape, even though the victim doesn't so experience it at the time and may not see it that way later. (243) It seems to me that this is plainly not so for some persons in some circumstances. The law needs to ask instead whether the act was patently offensive, potentially injurious, or otherwise harmful. Rape law does not ask these questions; the law of battery does and hence may be better suited to address unconscious sex.

Statutory rape is conventionally said to be rape for the same reason as unconscious sex: because minors, like the unconscious, are incapable of consent. (244) Rejecting the idea that rape is unconsented-to sex, a conception of rape based on self-possession could not take this view (and therefore would not apply to every act of sex with a minor). The truth, however, is that existing law doesn't really take it either.

If an adult has sex with, say, a seventeen-year-old, the law knows perfectly well that the latter may in fact have consented: if so, the only charge against the adult will be statutory rape; if not, the defendant can be charged with "real" rape as well. (245) In other words, states distinguish between consenting and nonconsenting minors, and they criminalize sex between an adult and a consenting seventeen-year-old not for the illogical reason that a consenting minor can't consent, but because such sex is deemed immoral and harmful even though consensual (246) (unless of course the two are married, in which case it's sacrosanct). Statutory rape is not an instance of "real" rape; it is a different and independent crime. Thus seeing "real" rape as a violation of self-possession (and therefore requiring force) should have no effect on statutory rape.

As to intoxicated sex, let's distinguish between people who are passed out or blind-drunk (covered by whatever rules apply to unconscious sex) and people who, because of impairment or disinhibition, willingly participate in sex acts to which they would not have consented if sober. And let's further narrow the latter cases to exclude those in which physical force or threats are used against the intoxicated person (which would obviously be rape under any definition). The question, then, is under what circumstances having otherwise-willing sex with an intoxicated person, who might or would not have participated but for his or her intoxication, amounts to rape. In such cases, the decisive question would be how the intoxication came about. If it came about by force, there would be rape; otherwise, not.

Here the rule I am describing already exists in the case law. In many jurisdictions, rape will be found in intoxicated sex only if the intoxicant was not voluntarily consumed, but rather "administered" by the accused. (247) If rape were sex without consent, this rule would seem dubious. (248) Instead the doctrine ought to consider only the degree of impairment of judgment and whether this was visible to the defendant; perhaps the rule should be like California's, under which it is rape to have sex with anyone who because of intoxication is no longer exercising "reasonable judgment" (249) (a standard implying that a significant fraction of the state's college-age population may be guilty of the crime). Requiring in addition that the defendant "administered" the intoxicant would make little sense if rape were really sex without consent. But it does make sense if rape requires force.

CONCLUSION

The right to self-possession implies the freedom not to have another person forcibly take sexual possession of one's body, which in turn implies the freedom not to be forced into sexual service. This freedom links rape law directly to Roe. It explains why rape is not like other assaults without relying on the myth of sexual autonomy. And it explains why sex-by-deception is not rape. The right to self-possession would, however, look favorably on rape law's force requirement and, because it rejects the principle of sexual autonomy, cast doubt on Lawrence's libertarian leanings. These costs may be too high. If so, law always has room for myth.

(1) CrimC (Jer) 561/08 State of Israel v. Kashour (July 19, 2010), Nevo Legal Database (by subscription), para. 13, 15. The facts of the case remain disputed. Kashour denied claiming to be Jewish, while the woman initially asserted forcible rape. See Lital Grossman, From Rape to Racism: How and W71v Did Charges Change Against Arab Man?, HAARRETZ, Sept. 17, 2010, http://www.haaretz.com/weekend/week-s-end/from-rape-to-racism-how-and-why -did-charges-change-against-arab-man-l.314319. The doctrine of rape-by-deception has been affirmed by Israel's Supreme Court in a case involving less politically charged facts. See CrimA 2358/06 Selimann v. State of Israel (Sept. 17, 2008), Nevo Legal Database (by subscription) (upholding the rape conviction of a Jewish man who pretended to be a housing official able to procure apartments for women in exchange for sex). In 2012, the Israeli Supreme Court reduced Kashour's sentence. CrimA 5734/10 Kashour v. State of Israel (Jan. 25, 2012), Nevo Legal Database (by subscription); Joanna Paraszczuk, Court Cuts Arab-Israeli Rape-by-Deception Sentence, JERUSALEM POST, Jan. 27, 2012, http://www.jpost.com/NationalNews/Article.aspx?id=255363.

(2) H.R. 1494, 186th Gen. Court (Mass. 2009), http://www.malegislature.gov/Bills/186 /House/Ha494 (emphasis added).

(3.) TENN. CODEANN. [section] 39-a3-503(a)(4) (2010).

(4.) IDAHO CODE ANN. [section] 18-6101(8) (Supp. 2011). Interestingly, if a man is so deceived, it isn't rape. Id. [section] [section] 18-6101(7) to (8), 18-6108.

(5.) See R. v. Cuerrier, [1998] 2 S.C.R. 371, 374 (Can.) (opinion of L'Heureux-Dube, J.).

(6.) See, e.g., Ryan McCartney, Could a Pick-Up Artist Be Charged with 'Rape by Deception'?, NBC News, http://www.msnbc.msn.coni/id/38430181/ns/us_news-crime_and_courts/t/could -pick-up-artist-be-charged-rape-deception (last updated July 27, 2010, 1:38 PM) (noting the "visceral reaction [of] many in the United States" against the Kashour ruling).

(7.) See infra Section II.A; see also, e.g., B.K. Carpenter, Annotation, Rape by Fraud or Impersonation, 91 A.L.R.2d 591, [section] 2 (1963) ("[T]he prevailing view is that upon proof that consent to intercourse was given, even though [procured by] fraud ..., a prosecution for rape cannot be maintained.").

(8.) See, e.g., R v. Clarence, (1888) 22 Q.B.D. 23 at 43 (Stephen, J.) (Eng.) ("[T]he definition of rape is having connection with a woman without her consent. ..."); 1 Francis Wharton, A Treatise on Criminal Law [section] 556, at 490 (8th ed. 1880) ("[I]t may now be received as settled law that rape is proved when carnal intercourse is effected with a woman without her consent. ...").

(9.) See, e.g., COLO. Rev. Stat. [section] 18-3-402 (2004) (defining "Sexual assault"); Mont. Code Ann. [section] 45-5-503(1) (2011) (defining "Sexual intercourse without consent"); Utah Code Ann. [section] 76-5-402(1) (LexisNexis 2003); Sexual Offences (Scotland) Act, 2009, (A.S.P. 9), [section] 1; Sexual Offences Act, 2003, c. 42, [section] 1(1) (U.K.).

(10.) See, e.g., United States v. Thomas, 159 F.3d 296, 299 (7th Cir. 1998) ("[U]nconsented-to sex is forcible rape, or, at the least, battery."); People v. Cicero, 204 Cal. Rptr. 582, 590 (Ct. App. 1984) ("[T]he law of rape primarily guards the integrity of a woman's will and the privacy of her sexuality from an act of intercourse undertaken without her consent."); CAROLYN LOGAN, COUNTERBALANCE: GENDERED PERSPECTIVES FOR WRITING AND LANGUAGE 72 (1997) ("In public discourse, rape has become 'unconsented sexual activity.'"); Joan McGregor, Force, Consent, and the Reasonable Woman, in IN HARM'S WAY: ESSAYS IN HONOR OF JOEL FEINBERG 231, 250 (Jules L. Coleman & Allen Buchanan eds., 1994) ("Rape should be conceptualized as unconsented-to sexual intercourse. ...").

(11.) E.g., McClellan v. Allstate Ins. Co., 247 A.2d 58, 61 (D.C. 1968) ("[C]onsent obtained on the basis of deception is no consent at all."); Johnson v. State, 921 So. 2d 490, 508 (Fla. 2005) (per curiam) ("Consent obtained by trick or fraud is actually no consent at all. ..."); Kreag v. Authes, 28 N.E. 773, 774 (Ind. App. 1891) ("Consent obtained by fraud is, in law, equivalent to no consent."); Chatman v. Giddens, 91 So. 56, 57 (La. 1921) ("Consent induced by fraud is no consent at all."); Farlow v. State, 265 A.2d 578, 580 (Md. Ct. Spec. App. 1970) ("Consent ... obtained by fraud ... is the same as no consent so far as trespass is concerned."); Murphy v. I.S.K.CON of New Eng., Inc., 571 N.E.2d 340, 352 (Mass. 1991) ("Of course, if consent is obtained by fraud or duress, there is no consent."); Dellavecchio v. Hicks, No. FD-04-1038-90, 2006 WL 727770, at *3 (N.J. Super. Ct. App. Div. Mar. 23, 2006) (per curiam) ("Consent given by virtue of fraud is no consent at all."); State v. Ortiz, 584 P.2d 1306, 1308 (N.M. Ct. App. 1978) ("[A] consent obtained by fraud, deceit or pretense is no consent at all."); Lawyer v. Fritcher, 29 N.E. 267, 268 (N.Y. 1891) ("If the plaintiffs consent was obtained by defendant through fraud, it was void, for fraud vitiates all contracts and all consents."); People v. De Leon, 16 N.E. 46, 48 (N.Y. 1888) ("The consent of the prosecutrix, having been procured by fraud, was as if no consent had been given. ..."); see also, e.g., United States v. Cavitt, 550 F.3d 430, 439 (5th Cir. 2008) ("'Consent' induced by an officer's misrepresentation is ineffective."); United States v. Hardin, 539 F.3d 404, 425 n.12 (6th Cir. 2008) (defining a "valid consent" as "uncontaminated by duress, coercion, or trickery" (quoting United States v. Jones, 641 F.2d 425, 429 (6th Cir. 1981))); United States v. Sheard, 473 F.2d 139, 152 (D.C. Cir. 1972) (Wright, J., dissenting) ("Moreover, under elementary principles of law consent obtained by misrepresentation is no consent at all."); Jeffcoat v. United States, 551 A.2d 1301, 1304 n.5 (D.C. 1988) ("To be valid, consent must be informed and not the product of trickery, fraud, or misrepresentation.").

(12.) E.g., Theofel v. Farey-Jones, 359 F.3d 1066, 1073 (9th Cir. 2004); J.H. Desnick, M.D., Eye Servs., Ltd. v. ABC, Inc., 44 F.3d 1345, 1352 (7th Cir. 1995); see also Farlow, 265 A.2d at 581 (finding entry trespassory where entry was procured through fraud); Ortiz, 584 P.2d at 1308 ("Where the consent to enter is obtained by fraud, deceit or pretense, the entry is trespassory because the entry is based on a false consent."); Rollin M. Perkins, Perkins on Criminal Law 245-48 (2d ed. 1969).

(13.) Elliott v. State, No. 05-10-00049-CR, 2011 WL 2207091, at *1 (Tex. App. June 8, 2011); cf. People v. Traster, 4 Cal. Rptr. 3d 680, 688 (Ct. App. 2003) (holding that fraudulent stock investment is larceny by trick (citing 2 Wayne R. LAFAVE & AUSTIN W. SCOTT, JR., SUBSTANTIVE CRIMINAL LAW [section] 8.7, at 396 (1986))).

(14.) Restatement (Second) of Torts [section] 8926(2) cmt. e, illus. 7 (1977); see, e.g., Boyett v. State, 159 So. 2d 628, 630-31 (Ala. Ct. App. 1964); 1 Wharton's Criminal Law [section] 835 (nth ed. 1932) (discussing assault and battery) ("[I]n any view, consent obtained through fraud ... is no defense.").

(15.) NLRB v. Dadourian Exp. Corp., 138 F.2d 891, 892 (2d Cir. 1943).

(16.) Sec, e.g., Suliveres v. Commonwealth, 865 N.E.2d 1086, 1087 (Mass. 2007).

(17.) See, e.g., Susan ESTRICH, Real Rape 69 (1987) ("[T]he force standard continues to protect ... conduct which should be considered criminal. It ensures broad male freedom to 'seduce' women who feel themselves to be powerless ... and afraid ... [, and] to intimidate women and exploit their weakness and passivity. ..."); Stephen J. SCHULHOFER, UNWANTED SEX: THE CULTURE OF INTIMIDATION AND THE FAILURE OF LAW 15 (1998) (arguing that the force requirement "places an imprimatur of social permission on virtually all pressures and inducements that can be considered nonviolent. It leaves women unprotected against forms of pressure that any society should consider morally improper and legally intolerable").

(18.) David P. Bryden, Redefining Rape, 3 Buff. Crim. L. Rev. 317, 322 (2000).

(19.) See supra note 9; see also Charlie Savage, U.S. To Expand Its Definition of Rape in Statistics, N.Y. Times, Jan. 6, 2012, http://www.nytimes.com/2012/01/07/us/politics/federal-crime -statistics-to-expand-rape-definition.html (reporting that the FBI has, after ninety years, eliminated the force requirement from its definition of rape in favor of a consent-based formulation).

(20.) 381 U.S. 479 (1965) (striking down a law banning the use of contraception).

(21.) 539 U.S. 558 (2003) (striking down a law criminalizing homosexual sex).

(22.) See infra Section I.A.

(23.) See infra Section I.B.

(24.) See infra Section I.C.

(25.) See infra Subsection I.D.3.

(26.) See infra notes 102-114 and accompanying text.

(27.) See infra Part II and notes 148 and 152.

(28.) See infra Section III.A.

(29.) See, e.g., People v. Barnes, 9 P. 532, 534-35 (Idaho 1886) (holding consent irrelevant for a conviction of fornication).

(30.) JOEL PRENTISS BISHOP, COMMENTARIES ON THE LAW OF STATUTORY CRIMES [section] 656, at 474-75 (3d ed. 1901).

(31) CHESTER G. VERNIER, AMERICAN FAMILY LAWS 288 (1931).

(32) At least thirty-four states and territories in the 1860s, and twenty-six as of 1910, criminalized miscegenation, often defined in terms not only of marriage, but of fornication or other "forms of illicit intercourse." GILBERT THOMAS STEPHENSON, RACE DISTINCTIONS IN AMERICA LAW 78-81 (1910).

(33) Or "buggery," or the "crime against nature." See, e.g., State v. Long, 63 So. 180, 180 (La. 1913).

(34.) See, e.g., Thompson v. Aldredge, 200 S.E. 799, 800 (Ga. 1939) ("[T]he crime of sodomy proper cannot be accomplished between two women, though the crime of bestiality may be." (quoting 1 FRANCIS WHARTON, A TREATISE ON CRIMINAL LAW [section] 754 (11th ed. 1912))). See generally WILLIAM N. ESKR/DGE JR., DISHONORABLE PASSIONS: SODOMY LAWS IN AMERICA 1861-2003, at 69, 92 (2008) (describing the express criminalization of lesbian sex beginning in the 1920s).

(35.) As late as 1976, a federal appellate court upheld the conviction of married defendants for consensual sodomy. See Lovisi v. Slayton, 539 F.2d 349 (4th Cir. 1976).

(36.) Seg JANET FARRELL BRODIE, CONTRACEPTION AND ABORTION IN NINETEENTH-CENTURY AMERICA 257 (1994) (noting that as of 1885 twenty-four states and the federal government prohibited the sale of contraceptive devices); id. at 253-55 (discussing the rise of anti-abortion laws).

(37.) See id. at 257.

(38.) In 1978, the Supreme Court could still refer to "marriage" as "the only relationship in which the State of Wisconsin allows sexual relations legally to take place." Zablocki v. Redhail, 434 U.S. 374, 386 (1978).

(39.) See Anne M. Coughlin, Sex and Guilt, 84 VA. L. Rrv. 1, 6 (1998) ("[I]t seems clear that the official purposes of [traditional] rape law ... did not include the protection of sexual autonomy.").

(40.) Another part of this story is the constitutional protection given to sexually graphic expression, which has allowed pornography to become a multibillion-dollar industry. See, e.g., John A. Humbach, 'Sexting' and the First Amendment, 37 HASTINGS CONST. L-Q:- 433, 441 & n.45 (2010).

(41.) Griswold v. Connecticut, 381 U.S. 479,485 (1965).

(42.) Id. at 486. Id. at 485-86.

(44.) The idea that the right to privacy might apply only or specially to marital relationships was arguably buttressed by Loving v. Virginia, 388 U.S. 1 (1967), which held that a law banning interracial marriage violated the Due Process Clause.

(45.) 405 U.S. 438 (1972).

(46.) Id. at 453.

(47.) See, e.g., Radhika Rao, Property, Privacy, and the Human Body, 80 B.U.L. REV. 359,360 n.2 (2000) ("Many scholars suggest that the term 'privacy' itself is a misnomer. ...

(48.) RICHARD A. POSNER, SEX AND REASON 324 (1992).

(49.) 478 U.S. 186 (1986) (upholding a conviction for homosexual sodomy).

(50.) See/d. at 196.

(51.) Lawrence v. Texas, 539 U.S. 558, 562 (2003).

(52.) M. at 577-78 (quoting Bowers, 478 U.S. at 216 (Stevens, J., dissenting)).

(53.) Id. at 578.

(54.) See, e.g., David S. Bogen, Slaughter-House Five: Views of the Case, 55 HASTINGS L.J. 333, 334 n.4 (2003) (reading Lawrence to support the proposition that "adults have [a] fundamental right to autonomy in intimate choices"); Erwin Chemerinsky, Implied Fundamental Rights, in 20TH ANNUAL SECTION 1983 CIVIL RIGHTS LITIGATION 167, 171 (PLI Litig. & Admin. Practice, Course Handbook Ser. No. 700, 2003) (describing Lawrence as vindicating a "right to engage in private consensual homosexual activity"); James A. Gardner, State Constitutional Rights as Resistance to National Power: Toward a Functional Theory of State Constitutions, 91 GEO. L.J. 2003, 1042 (2003) (asserting that Lawrence guarantees "a personal right of private sexual autonomy"); Hon. Diarmuid F. O'Scannlain, Speech, Rediscovering the Common Law, 79 NOTRE DAME L. REV. 755, 761 n.17 (2003) (reading Lawrence as standing for a "right to sexual autonomy"). But see, e.g., Robert C. Post, The Supreme Court, 2002 Term-Foreword: Fashioning the Legal Constitution: Culture, Courts, and Law, 117 HARV. L. REV. 4, 97 (2003) ("[T]he theme of autonomy floats weightlessly through Lawrence, invoked but never endowed with analytic traction.").

(55.) Reliable Consultants, Inc. v. Earle, 517 F.3d 738, 744 (5th Cir. 2008); see also, e.g., Martin v. Ziherl, 607 S.E.Ed 367 (Va. 2005) (striking down a fornication statute under Lawrence).

(56.) MODEL PENAL CODE [section] 213.6 note on status of section, at 434-36 (Proposed Official Draft 1962).

(57.) See Richard Green, Fornication: Common Law Legacy and American Sexual Privacy, 17 ANGLO-AM. L. REV. 226, 226 (1988); Gabrielle Viator, Note, The Validity of Criminal Adultery Prohibitions AFTER Lawrence v. Texas, 39 SUFFOLK U. L. KEV. 837, 842 (2006). Over the last several decades, state prosecutions for fornication and adultery have not disappeared, although they have been rare. See Sara Sun Beale, The Many Faces of Overcriminalization: From Morals and Mattress Tags to Overfederalization, 54 AM. U. L. REV. 747, 756-57 (2005) (describing a few such cases while also noting that "there have been no prosecutions in most states in recent years"). In the military, however, adultery offenses have still been regularly prosecuted. See Katherine Annuschat, Comment, An Affair To Remember: The State of the Crime of Adultery in the Military, 47 SAN DIEGO L. REV. 1161, 1191 & n.195 (2010).

(58.) See Jane E. Larson, "Women Understand So Little, They Call My Good Nature 'Deceit'": A Feminist Rethinking of Seduction, 93 COLUM. L. REV. 374, 394-98 (1993) (discussing the movement, beginning in the 1930s, to abolish seduction statutes).

(59.) See ESKRIDGE, supra note 34, at 176-78 ("For several years after Stonewall, sodomy decriminalization indeed proceeded rapidly in many states.").

(60.) See ERNEST EARNEST, ACADEMIC PROCESSION: AN INFORMAL HISTORY OF THE AMERICAN COLLEGE, 1636 TO 1953, at 108 (1953) (describing the ways that American colleges historically sought to "limit sexual activity"). The rules at the coeducational Hillsdale College in 1860 were probably not unusual: "Students are prohibited upon pain of expulsion from visiting those of the other sex at their rooms, or receiving visits from them at their own." FIFTH ANNUAL CATALOGUE OF THE OFFICERS AND STUDENTS OF HILLSDALE COLLEGE 40 (1860). Homosexual sex provoked, as usual, the harshest reprisals. See, e.g., WILLIAM WRIGHT, HARVARD'S SECRET COURT: THE SAVAGE 1920 PURGE OF CAMPUS HOMOSEXUALS (2005) (describing the secret tribunal used at Harvard in 1920 to investigate and punish homosexuality).

(61.) THE DUKE COMMUNITY STANDARD IN PRACHCE: A GUIDE FOR UNDERGRADUATES 2012-2013, at 47 (Stephen Bryan, David Frankel & Valerie Glassman eds., 2012), http://registrar.duke.edu /sites/default/fdes/unmanaged/bulletins/communitystandard/2012-13/dcs%20guide%202012 -13.pdf(reflecting policies for the 2012 to 2013 academic year).

(62.) Id.

(63.) Id.

(64.) Definitions of Sexual Misconduct, Sexual Consent, and Sexual Harassment, YALE C., http://yalecollege.yale.edu/content/definition-sexual-misconduct-sexual-consent-and-sexual -harassment (last visited Apr. 19, 2012).

(65.) Id.

(66.) The Department of Education's 20ll "Dear Colleague" letter may have been a motivation. See Office for Civil Rights, Dear Colleague Letter from Assistant Secretary for Civil Rights Rosslyn Ali, U.S. DEV'T OF EDt;C. (Apr. 4, 2011), http://www.ed.gov/about/offices/list/ocr /letters/colleague-20xx04.html (warning universities of potential Title IX violations).

(67.) Definitions of Sexual Misconduct, Sexual Consent, and Sexual Harassment, supra note 64 (warning that when "there is ambiguity about whether consent has been given, a student can be charged with, and found guilty of, committing a sexual assault or another form of sexual misconduct").

(68.) See Coker v. Georgia, 433 U.S. 584 (1977) (holding the death penalty unconstitutional for the crime of rape); see also Kennedy v. Louisiana, 554 U.S. 407 (2008) (reaffirming Coker in cases of child rape).

(69.) See, e.g., AI.A. CODE 5 13A-6-61 (2012); ARK. CODE ANN. [section] 5-14-124 (2011); GA. CODE ANN. 16-6-1 (20ll); Sexual Offences Act, 2003, c. 42, [section] 1(4) (U.K.).

(70.) But cutting off a hand or disfiguring a face can be mayhem. See, e.g., People v. Ausbie, 20 Cal. Rptr. 3d 371,376 (Ct. App. 2004).

(71.) I'm not looking here for an answer, however true it might be, of the form: "The purpose of traditional rape law was to subordinate women and entrench men's property rights in them." I'm asking about the law's self-understanding-what judges, lawyers, and others of this era would have said.

(72.) Callaghan v. State, 155 P. 308,309 (Ariz. 1916).

(73.) 1 JOEL PRENTISS BISHOP, COMMENTARIES ON THE CRIMINAL LAW [section] 411, at 447 (Boston, Little Brown & Co., 2d ed. 1858).

(74.) Biggs v. State, 29 Ga. 723,728-29 (1860).

(75.) 2 HECTOR DAVIES MORGAN, THE DOCTRINE AND LAW OF MARRIAGE, ADULTERY, AND DIVORCE 351 (Oxford, W. Baxter 1826).

(76.) JOHN COTTON, AN ABSTRACT OF THE LAWES OF NEW ENGLAND, AS THEY ARE NOW ESTABLISHED 14-15 (1641).

(77.) "Ruin" is a frequent motif in sex cases from this era. See, e.g., Taylor v. State, 35 S.E. 161, 164 (Ga. 1900); Wood v. State, 189 S.W. 474, 477 (Tex. Crim. App. 1916); see also, e.g., Biggs, 29 Ga. at 729 (rape violates "female purity" (emphasis added)); Litchfield v. State, 126 P. 707, 713 (Okla. Crim. App. 1912) (rape is "moral desolation and spiritual assassination").

(78.) Smith v. Milburn, 17 Iowa 30, 36 (1864) ("rake"); Breon v. Hinkle, 13 P. 289,294 (Or. 1887) ("knave"); Adams v. State, 19 Tex. Ct. App. 250, 251 (1885) ("rascal"). In fact, the entire crime of"seduction" (intercourse obtained through a promise, especially a false promise, of marriage) was built on female-purity premises: only males could be guilty; only females victimized; and in most states the woman's prior "chastity" was an element of the crime. See BISHOp, supra note 30, [section] [section] 638-640, at 462-65; see also, e.g., People ex rel. Scharff v. Frost, 120 N.Y.S. 491,491 (App. Dip. 1909) (noting that a person was guilty of seduction if he, "'under promise of marriage, seduces and has sexual intercourse with an unmarried female of previous chaste character'" (quoting statute)).

(79.) See, e.g., Thomas A. Mitchell, We're Only Fooling Ourselves: A Critical Analysis of the Biases Inherent in the Legal System's Treatment of Rape Victims (or Learning from Our Mistakes: Abandoning a Fundamentally Prejudiced System & Moving Toward a Rational Jurisprudence of Rape), 18 BUFF. J. GENDER L. & SOC. POL'Y 73, 77 (2010) ("Throughout most of history, rape was considered a crime against the chastity of the victim. ... "); see also, e.g., Michelle J. Anderson, From Chastity Requirement to Sexuality License: Sexual Consent and a New Rape Shield Law, 70 GEO. WASH. L. REV. 51, 53 (2002) ("Embedded within [traditional] rape law, therefore, was an informal, though powerful, normative command that women maintain an ideal of sexual abstinence in order to obtain legal protection. ... "); Coughlin, supra note 39, at 45-46 (referring to the "social attitudes and practices that stigmatize female sexual activity" that used to be incorporated in the "definition of rape").

(80.) Under traditional law, a man could not rape his wife. See, e.g., Wilson v. United States, 230 F.2d 521, 526 (4th Cir. 1956) ("It is well settled that a husband ... cannot be convicted as A ... principal in the rape of his wife. ... "); 2 JOEL PRENTISS BISHOP, NEW COMMENTARIES ON THE CRIMINAL LAW [section] 1119(2) (Chicago, T.H. Flood & Co. 8th ed. 1892); 1 WHARTON, supra note 8, [section] 553, at 514 (10th ed. 1896).

(81.) 1 MATTHEW HALE, THE HISTORY OF THE PLEAS OF THE CROVCN *629 (Philadelphia, Robert H. Small ed., 1847); see also, e.g., Williams v. State, 494 So. 2d 819, 827 (Ala. Crim. App. 1986) ; State v. Scott, 525 A.2d 1364, 1369 (Conn. App. Ct. 1987) ; State v. Smith, 426 A.2d 38, 41 (N.J. 1981); ESTRICH, supra note 17, at 72-73; ALAN WERTHEIMER, CONSENT TO SEXUAL RELATIONS 12 (2003).

(82.) People v. Liberta, 474 N.E.2d 567, 572 (N.Y. 1984) ; JAMES FITZJAMES STEPHEN, A DIGEST OF THE CRIMINAL LAW 186 & n.1 (London, MacMillan & Co. 1883).

(83.) See, e.g., Commonwealth v. Chretien, 417 N.E.2d 1203, 1207 (Mass. 1981) ("It is generally thought.., that the basis of the spousal exclusion probably lies in the ancient concept of the wife as chattel."); Liberta, 474 N.E.2d at 573; ESTRICH, supra note 17, at 73-74.

(84.) Neither fornication, adultery, nor seduction could be committed by a husband with his wife; indeed for seduction, even a subsequent marriage was usually a defense. 2 WHARTON, supra note 8, [section] 1760, at 518. Prostitution would have covered what many women did in the marital bedroom if marriage hadn't been exempted-an exception that still exists today. See, e.g., COLO. REV. STAT. [section] 18-7-201(1) (2011).

(85.) 2 BISHOP, supra note 80, [section] 1119(2), at 645; e.g., Commonwealth v. Fogerty, 74 Mass. (8 Gray) 489,491 (1857); People v. Chapman, 28 N.W. 896 (Mich. 1886).

(86.) Chapman, 28 N.W. at 898; see also, e.g., State v. Dowell, 11 S.E. 525, 525 (N.C. 1890) (asserting that forcing one's wife into sexual intercourse with another man "prostitute[s]" her (quoting 1 HALE, supra note 81, at *629)).

(87.) Crutcher v. Crutcher, 38 So. 337, 337 (Miss. 1905).

(88.) See, e.g., United States v. Trudeau, 22 C.M.R. 485 (1956) (upholding conviction of assault with intent to sodomize wife); Mahone v. State, 209 So. 2d 435 (Ala. Ct. App. 1968); Smith v. State, 234 S.W. 32, 32-33 (Ark. 1921); Quinn v. Quinn, 6 Pa. D. & C. 712, 714-15 (Ct. Com. PI. 1925); R v. Jellyman, (1839) 173 Eng. Rep. 637 (Patteson, J.).

(89.) E.g., 2 BISHOP, supra note 80, [section] 1115(2), at 643 ("Rape is a man's ravishment of a woman. ... ") ; 4 WILLIAM BLACKSTONE, COMMENTARIES "210 (defining rape as "the carnal knowledge of a woman forcibly and against her will" (emphasis added)).

(90.) A study of the history of the legal treatment of sexual assaults against children observes: "On the rare occasions when reformers and commentators did mention sexual assaults on boys by men, they presented those acts differently from instances of sexual violence against girls. ... Both did suffer physical injury. Girls, however, also experienced 'ruin'. ..." Stephen Robertson, 'Boys, of Course, Cannot Be Raped': Age, Homosexuality and the Redefinition of Sexual Violence in New York City, 1880-1955, 18 GENDER & HIST. 357, 360 (2006).

(91.) A woman claiming rape used to be required to show that she had resisted the defendant "to her utmost." E.g., Reynolds v. State, 42 N.W. 903, 903-04 (Neb. 1889) ; People v. Dohring, 59 N.Y. 374, 382 (1874); Brown v. State, 106 N.W. 536, 538 (Wis. 1906). For trenchant criticisms, see ESTRICH, supra note 17, at 29-41; and SCHULHOFER, supra note 17, at 19-20.

(92.) See, e.g., Dohring, 59 N.Y. at 384 ("Can the mind conceive of a woman ... revoltingly unwilling that this deed should be done upon her who would not resist so hard and so long as she was able?").

(93.) See 4 BLACKSTONE, supra note 89, at "213 (asserting that European rape law excluded prostitutes).

(94.) 2 BISHOP, supra note 80, [section] 1119(1), at 645 (even a "common prostitute" can charge rape). Some judges explained this rule on the ground that every sex act inflicted an additional defilement. See State v. Fernald, 55 N.W. 534, 535 (Iowa 1893) ("That which is already impure or unclean may be defiled by making more impure or unclean.").

(95.) E.g., 2 BISHOP, supra note 80, g 1119(1), at 645. Wigmore maintained that a young woman's unchastity was also admissible to prove lack of credibility and even psychological instability. JOHN HENRY WIGMORE, A TREATISE ON THE SYSTEM OF EVIDENCE IN TRIALS AT COMMON LAW [section] 924a (2d ed. supp. 1934). Some states disagreed. See, e.g., Shay v. State, 90 So. 2d 209, 211 (Miss. 1956) ("[W]here want of consent is not in issue ... evidence of the female's want of chastity is immaterial and inadmissible.").

(96.) See, e.g., ESTRICH, supra note 17, at 49; SCHULHOFER, supra note 17, at 25.

(97.) See Emily J. Sack, Is Domestic Violence a Crime?: Intimate Partner Rape as Allegory, 24 ST. JOHN'S J. LEGAL COMMENT. 535, 554 (2010) (noting the abolition of the exemption in every state) ; see also, e.g., R v. R, (1992) 1 A.C. 599 (H.L.) (appeal taken from Eng.) (abolishing the exemption). A marital exemption remains in statutory rape. See, e.g., State v. Moore, 606 S.E.2d 127, 131 (N.C. Ct. App. 2004).

(98.) See Siegmund Fred Fuchs, Note, Male Sexual Assault: Issues of Arousal and Consent, 51 CLEV. ST. L. REV. 93, 111 (2004) ("[A]ll but three jurisdictions in the United States have gender-neutral rape statutes.").

(99.) See Katherine E. Volovski, Domestic Violence, 5 GEO. J. GENDER & L. 175, 278-79 (2004). 100. Richard Klein, An Analysis of Thirty-Five Years of Rape Reform: A Frustrating Search for Fundamental Fairness, 41 AKRON L. REV. 98L 990-91 (2008) (discussing the passage of rape shield laws in every state and by Congress).

(101.) See infra Section V.C.

(102.) Coker v. Georgia, 433 U.S. 584, 597 (1977) (plurality opinion) (emphasis added).

(103.) E.g., Kennedy v. Louisiana, 554 U.S. 407, 437 (2008); Evans v. Ercole, No. 07-CV-6686, 2010 U.S. Dist. LEXIS 37078, at "13 (S.D.N.Y. Apr. 13, 2010); Warren v. State, 336 S.E.2d 221,224 (Ga. 1985); State v. Wilson, 685 So. 2d 1063, 1066 (La. 1996); State v. Brand, 363 N.W.2d 516,518 (Neb. 1985).

(104.) Coker, 433 U.S. at 597.

(105.) See, e.g., Gonzales v. Thomas, 99 F.3d 978, 990 (10th Cir. 1996) ("Rape is a traumatic and heinous violation of personal integrity and autonomy."); People v. Soto, 245 P.3d 410, 418 (Cal. 2011) (describing rape as a violation of "sexual autonomy"); People v. De Stefano, 467 N.Y.S.2d 506, 51z (Suffolk Cnty. Ct. 1983) ("Rape is an abomination not because it is an assault on innocence, but because it is an assault on freedom. The gravity of rape ... is in the injury to autonomy. ... " (citation omitted)).

(106.) State ex tel. M.T.S., 609 A.2d 1266, 1278 (N.J. 1992).

(107.) Id. at 1277.

(108.) Patricia J. Falk, Rape by Drugs: A Statutory Overview and Proposals for Reform, 44 ARIZ. L. REV. 131, 187 (2002).

(109.) SCHULHOFER, supra note 17, at 16-17.

(110.) McGregor, supra note 10, at 236.

(111.) See, e.g., Coughlin, supra note 39, at 2; Donald A. Dripps, Beyond Rape: An Essay on the Difference Between the Presence of Force and the Absence of Consent, 92 COLUM. L. REV. 1780, 1785 (1992) (defining "sexual autonomy" as "the freedom to refuse to have sex with any one for any reason"); Dan M. Kahan, What Do Alternative Sanctions Mean?, 63 U. CHL L. KEY. 59a, 598 (1996) ("[T]he violation of a woman's sexual autonomy conveys greater disrespect for her worth than do most other violations of her person."). Dorothy Roberts was among the first to thematize rape as a problem of female autonomy. See Dorothy E. Roberts, Rape, Violence, and Women's Autonomy, 69 CHI.-KENT L. REV. 359 (1993)

(112.) STRAFGESETZUUCH [STGB] [PENAL CODE], Nov. 13, 1998, BUNDESEGESETZBLATT I [BGBL. I], at [section] [section] 174-184 (Ger.).

(113.) See, e.g., Jonathan Herring, Mistaken Sex, 2005 CRIM. L. REV. 511, 516 (treating sexual autonomy as rape law's central principle); Vanessa E. Munro, Constructing Consent: Legislating Freedom and Legitimating Constraint in the Expression of Sexual Autonomy, 41 AKRON L. REV. 923 (2008).

(114.) Prosecutor v. Kunarac, Case No. IT-96-23-T & IT-96-z3/a-T, Judgment, [paragraph] 440 (Int'l Crim. Trib. for the Former Yugoslavia Feb. 22, 2001).

(115.) MODEL PENAL CODE [section] 213.6 note on adultery and fornication, at 439 (Proposed Official Draft 1962).

(116.) 1 BISHOP, supra note 73, [section] 343, at 384.

(117.) Id. (emphasis added). There were dissenting voices, although they acknowledged the prevailing rule. See, e.g., People v. Crosswell, 13 Mich. 427, 437-38 (1865) (Cooley, J.) (criticizing the rule against rape-by-fraud); R v. Flattery, (1877) 2 Q.B.D. 410 at 413 (Kelly, C.B.) (Eng.) ("This case is therefore not within the authority of those cases which have decided, decisions which I regret, that where a man by fraud induces a woman to submit to sexual connection, it is not rape.") ; R v. Case, (1850) 169 Eng. Rep. 381 at 384 (Platt, B.) (Eng.) ("If she did not consent, then it was a rape; for there can be no distinction in principle between a dissent which makes connexion an assault, and a dissent which makes it a rape: fraud and force stand on the same footing. [Our cases to the contrary] require reconsideration.").

(118.) Rv. Clarence, (1888) 2.2. Q.B.D. 23 at 43 (Stephen, J.) (Eng.).

(119.) See, e.g., 2 BISHOP, supra note 80, [section] 1113-15, at 642-44 (noting the "common" definition of rape as "unlawful carnal knowledge, by a man of a woman, forcibly and against her will," and setting forth a "corrected" definition as "unlawful carnal knowledge, by a man of a woman, forcibly, where she does not consent"); 4 BLACKSTONE, supra note 89, at "210 (defining rape as "the carnal knowledge of a woman forcibly and against her will").

(120.) State v. Brooks, 76 N.C. 1, 3 (1877) (quoting statute); see also, e.g., Don Moran v. People, 25 Mich. 356,364 (1872) ("If the statute.., did not contain the words 'by force,' or 'forcibly,' doubtless a consent procured by such fraud as that referred to, might be treated as no consent. ... "); Wyatt v. State, 32 Tenn. 394, 398-99 (1852) ("Fraud ... cannot be substituted for force, as an element of this offence. ... ") (emphasis added).

(121.) See, e.g., Suliveres v. Commonwealth, 865 N.E.2d 1086, 1089 (Mass. 2007) (holding that rape requires force and therefore rejecting a claim of rape-by-deception); People v. Hough, 607 N.Y.S.2d 884, 885, 887 (Crim. Ct. 1994) (same); Commonwealth v. Culbreath, 36 Va. Cir. x88 (Cir. Ct. 1995) (same).

(122.) Clarence, 22 Q.B.D. at 43 (Stephen, J.). An Irish decision recognized rape by husband-impersonation in 1884. R. v. Dee (1884) 14 L.R. Ir. 468 (C.C.R.). A Scottish "Martin Guerre" came to life after the Great War, and the impersonator was found guilty of rape. See H.M. Advocate v. Montgomery, (1926) J.C. 2 (Scot.).

(123.) See Patricia J. Falk, Rape by Fraud and Rape by Coercion, 64 BROOK. L. REV. 39, 119 (1998) (observing "the two archetypical rape by fraud cases, fraudulent medical treatment and husband impersonation").

(124.) See, e.g., R v. Linekar, [1995] Q.B. 250 (C.A.) [255] (appeal taken from Eng.). By statute, England recently broadened the husband-impersonation exception to cover impersonation of any "person known personally to the complainant." Sexual Offences Act, 2003, c. 42, [section] 76(2) (b) (U.K.).

(125.) Until 1982, Canada's rape statute expressly included the case of "personating [the victim's] husband." Canada Criminal Code, R.S.C. 1970, c. C-34, [section] 143(b)(ii). The 1983 statute abolished the crime of rape, replacing it with "sexual assault" offenses. See Canada Criminal Code, R.S.C. 1985, c. C-46, [section] [section] 271-73. The Canadian Supreme Court has suggested that the new statute provides a "more flexible" rape-by-fraud doctrine. R. v. Cuerrier, [1998] 2 S.C.R. 371, 372 (Can.); see R. v. Crangle, [2010] 266 O.A.C. 299 (Can. Ont. C.A.) (upholding a conviction where one twin had sex with the other twin's girlfriend).

(126.) Papadimitropoulos v. The Queen (1958) 98 CLR 249, 257-59 (Austl.).

(127.) See, e.g., People v. Minkowski, 23 Cal. Rptr. 92 (Dist. Ct. App. 1962); Pomeroy v. State, 94 Ind. 96 (1883); People v. Crosswell, 13 Mich. 424, 438 (1865); Story v. State, 721 P.2d 1020 (Wyo. 2986). Some opinions hold that this exception applies only to patients who don't realize they are being sexually penetrated. See, e.g., Boro v. Superior Court, 210 Cal. Rptr. 122 (Ct. App. 1985). Others suggest the exception extends to convincing a patient that sexual penetration is medically required. See, e.g., Eberhart v. State, 34 N.E. 637 (Ind. 1893); see also, e.g., MICH. COMV. LAWS [section] 750.90 (2004) (making such conduct a felony punishable by up to ten years in prison).

(128.) See Russell L. Christopher & Kathryn H. Christopher, Adult Impersonation: Rape by Fraud as a Defense to Statutory Rape, 101 Nw. U. L. REV. 75, 100 & nn.164-65 (2007).

(129.) CAL. PENAL CODE [section] 261(a)(5) (West 2008).

(130.) MODEL PENAL CODE [section] 213.1(2)(C) (Official Draft and Explanatory Notes 1985).

(131.) See, e.g., United States v. Hughes, 48 M.J. 214, 216 (C.A.A.F. 1998); Boro, 210 Cal. Rptr. At 125; JOSHUA DRESSLER, UNDERSTANDING CRIMINAL LAW 143 (3d ed. 2001); WAYNE R. LAFAVE, CRIMINAL LAW 767 (3d ed. 2000); ROLHN M. PERKINS & RONALD N. BOYCE, CRIMINAL LAW 215 (3d ed. 1982); Christopher & Christopher, supra note 128, at 83-84.

(132.) See, e.g., Boro, 210 Cal. Rptr. at 123; PERKINS & BOYCE, supra note 131, at 1079-81; Christopher & Christopher, supra note 128, at 83.

(133.) Falk, supra note 123, at 157 ("The traditional formula for [determining the validity of] consent in fraud cases is the dichotomy between fraud in the factum and fraud in the inducement."); see PERKINS & BOYCE, supra note 131, at 1079; Christopher & Christopher, supra note 128, at 83.

(134.) See, e.g., Glenda K. Harnad et al., Criminal Law: Crimes Against Property, 18A CAL. JUR. 3D 137 (2012) (citing numerous cases of larceny achieved through fraudulent inducement). One of the most famous, early larceny-by-trick cases involved a false promise to return a horse within a few hours. The King v. Pear, (2779) 168 Eng. Rep. 208 (K.B.).

(135.) E.g., State v. Maxwell, 672 P.2d 590, 594 (Kan. 2993) (finding entry trespassory where defendants feigned interest in selling a watch) ; State v. Ortiz, 584 P.2d 1306, 2308 (N.M. Ct. App. 2978) (finding entry trespassory where defendants claimed to have come to a house to help the owner's daughter); see also Jay M. Zitter, Use of Fraud or Trick as "Constructive Breaking" for Purpose of Burglary or Breaking and Entering Offense, 17 A.L.R.STH 125 [section] 3a (1994) (citing numerous similar cases).

(136.) It is hornbook contract law that a person "fraudulently induced to enter into a contract has not assented to the agreement." 26 SAMUEL WILLISTON & RICHARD A. LORD, A TREATISE ON THE LAW OF CONTRACTS [section] 69.1 (4th ed. 2003); see, e.g., Blankenship v. USA Truck, Inc., 601 F.3d 852, 855 (8th Cir. 2010) (upholding claim that "fraud voids a contract ab initio-because fraud in the inducement precludes mutual assent") (second emphasis added).

(137.) See, e.g., RESTATEMENT (SECOND) OF TORTS [section] 173 cmt. b, illus. 1 (1965).

(138.) See, e.g., Theofel v. Farey-Jones, 359 F.3d 1066, 1073 (9th Cir. 2004); J.H. Desnick, M.D., Eye Servs., Ltd. v. ABC, Inc., 44 F.3d 1345, 1352 (7th Cir. 1995); Commonwealth v. Hayes, 460 A.2d 791, 796-97 (Pa. Super. Ct. 1983); RESTATEMENT (SECOND) OF TORTS [section] 173 cmt. b, illus. 2 (2965).

(139.) See, e.g., PERKINS & BOYCE, supra note 231, at 216 (asserting that impersonation-of-paramour is fraud in the inducement); see also, e.g., PETER WESTEN, THE LOGIC OF CONSENT: THE DIVERSITY AND DECEPTIVENESS OF CONSENT AS A DEFENSE TO CRIMINAL CONDUCT 298-99 (2004) (arguing that courts' treatment of husband-impersonation as fraud "in the factum" undercuts the entire fact/inducement logic). The outcomes are much better explained as moral judgments hiding behind a supposedly analytic distinction. See text accompanying note 145.

(140.) This is not so when the woman doesn't even know the doctor is entering her, but it is so when the doctor (or pseudo-doctor) falsely convinces her that intercourse is a medical treatment.

(141.) See, e.g., Hyman Gross, Rape, Moralism, and Human Rights, 2007 CRIM. L. REV. 220, 224 ("Separating innocuous falsehoods from pernicious deceptions would present insurmountable difficulties in a court of law. ... ").

(142.) A related argument might defend current rape-by-deception doctrine on the ground that the complainant might have slept with the deceiver anyway; how are courts to know if the deception really mattered, and shouldn't criminal law be reluctant to make the defendant's liability turn on the complainant's (counterfactual) state of mind? The obvious problem with this kind of argument is that it applies to all criminal fraud laws. See, e.g., Neder v. United States, 527 U.S. 1, 22-23 (1999) (noting the "well-settled" rule that courts must determine materiality in fraud prosecutions). In securities cases, courts have managed to deal with the exceedingly difficult question of whether a single failure to disclose one piece of information is material against the backdrop of a great deal of true information. See, e.g., Matrixx Initiatives, Inc. v. Siracusano, 131 S. Ct. 1309, 1318 (2011) (reaffirming that the "materiality requirement is satisfied when there is 'a substantial likelihood that the disclosure of the omitted fact would have been viewed by the reasonable investor as having significantly altered the total mix of information made available'" (quoting Basic Inc. v. Levinson, 485 U.S. 224, 231-32 (1988) (internal quotation marks omitted))). To claim that somehow in sexual contexts, materiality suddenly becomes insuperable would not be an argument for, but a rationalization of, existing doctrine. That the prosecution might not be able to prove materiality in some rape-by-deception cases provides no reason to exclude all rape-by-deception cases.

(143.) Below I'll consider other arguments justifying rape law's exclusion of sex-by-deception (for example, sexual deception is ubiquitous; people expect to be lied to in sexual contexts), freed from the requirement of explaining the two exceptions. See infra Section II.E. Here, the question is the riddle posed by existing law.

(144.) Marshall v. Territory, 101 P. 139, 143 (Okla. Crim. App. 1909); see also Cloninger v. State, 237 S.W. 288, 290 (Tex. Crim. App. 1921) (quoting from this passage in Marshall); State v. Dacke, 109 P. 1050, 1051 (Wash. 1910) (same).

(145.) E.g., Boro v. Superior Court, 210 Cal. Rptr. 122, 114-25 (Ct. App. 1985) (emphasis added) ("[T]he woman's consent is to an innocent act of marital intercourse while what is actually perpetrated upon her is an act of adultery." (quoting Perkins & Boyce, supra note 131, at 1081)); see, e.g., R v. Clarence, [1888] 22 Q.B.D. 23 at 44 (Eng.) ("Consent to [sex] with a husband is not consent to adultery."); R v. Dee, (1884) 14 L.R. Ir. 468 (C.C.R.) [479] ("IS]he intends to consent to a lawful marital act ... but did she consent to the act of adultery? Are not the acts themselves wholly different in their moral nature?").

(146.) E.g., Boro, 210 Cal. Rptr. at 124; Perkins & Boyce, supra note 131, at 215.

(147.) Cf Coughlin, supra note 39, at 31-32 (observing that in the two exceptional scenarios, the woman's actions would not have been criminal under fornication or adultery laws).

(148.) "[L]ying is wrong because it violates human autonomy. Lying forces the victim to pursue the speaker's objectives instead of the victim's. ... "David A. Strauss, Persuasion, Autonomy, and Freedom of Expression, 91 Colum. L. Rev. 334, 355 (1991); see also, e.g., 1 Joel Feinberg, The Moral Limits Of The Criminal Law: Harm To Others 116 (1984) ("[A] person's consent is fully voluntary only when he is a competent and unimpaired adult who has not been threatened, misled, or lied to about relevant facts. ..."); Joseph Raz, The Morality Of Freedom 378 (1986) ("Coercion and manipulation subject the will of one person to that of another. That violates his independence and is inconsistent with his autonomy."). For a comparative view, see Jacques du Plessis, Fraud, Duress and Unjustified Enrichment: A Civil-Law Perspective, in Unjustified Enrichment: Key Issues In Comparative Perspective 194, 196-200 (David Johnston & Reinhard Zimmermann eds., 2002), which canvasses civil and common law tort regimes and states that "it should be apparent that fraud and duress" are widely viewed as involving "serious violations of individual autonomy."

(149.) See, e.g., Schulhofer, supra note 17, at 100-01 (analyzing rape and a right of sexual autonomy in terms of consent and therefore criticizing the force requirement); McGregor, supra note 10, at 233, 236 (criticizing the force requirement on sexual autonomy grounds). The M.T.S. decision, mentioned earlier, is also illustrative. There the New Jersey Supreme Court, having embraced a right of sexual autonomy, held that where nonconsent is proven, the force requirement/s satisfied by the act of intercourse itself. State ex tel. M.T.S. 609 A.2d 1266, 1277 (N.J. 1992); see also State v. Meyers, 799 N.W.2d 132, 147 (Iowa 2011) (holding that Iowa's rape statute, which defines the crime as sex "by force or against the will," did not require physical force).

(150.) See Gross, supra note 141, at 224. This argument tracks traditional rape law. See, e.g., z Bishop, supra note 80, [section] 1122, at 647 ("Though her consent was obtained by fraud, still she consented."). The problem was and is that everywhere else in the law, consent obtained by fraud is no consent at all.

(151.) See Strauss, supra note 148, at 355, and the other sources cited supra note 148.

(152.) See, e.g., ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA, at ix (1974); see also Ayn Rand, The Nature of Government, in The Virtue of Selfishness 144, 150-51 (1964) ("Fraud involves a similarly indirect use of force: it consists of obtaining material values without their owner's consent, under false pretenses or false promises.").

(153.) Schulhofer, supra note 17, at 156; cf. Posner, supra note 48, at 393 (sex achieved through "the common misrepresentations of dating and courtship" is "merely humiliating," rather than "disgusting as well as humiliating").

(154.) Schulhofer, supra note 17, at 156.

(155.) Cf. Robin West, Narrative, Authority, and Law 218, 223 (1993) (discussing The Story of O and the feminist response to the "conflict between pleasure and ideal posed by the undeniable female eroticization of sexual submission").

(156.) Gross, supra note 141, at 224.

(157.) I thank Gideon Yaffe for bringing this objection to my attention.

(158.) See, e.g., Duffy v. Flagg, 905 A.2d 15, :20 (Conn. 2006) (holding that for the purposes of informed medical consent, only the nature of the procedure, its risks, its anticipated benefits, and the alternatives to the procedure are legally material).

(159.) See J.H. Desnick, M.D., Eye Servs., Ltd. v. ABC, Inc., 44 F.3d 1345, 1352 (7th Cir. 1995); cf. WESTEN, supra note 139, at 199 ("Ultimately, .... [courts] must make normatively contestable judgments as to the additional knowledge, if any, that subjects must possess" if assent "is to constitute a defense.").

(160.) To which the best answer might be that a surgeon's falsely playing a lover should be held to invalidate the patient's medical consent. I am accepting the contrary position only arguendo.

(161.) CrimA 2358/06 Selimann v. State of Israel (Sept. 17, 2008), Nero Legal Database (by subscription); see also R. v. Cuerrier, [1998] 2 S.C.R. 371, 374 (Can.) (opinion of L'Heureux-Dube, J.) (asserting that Canada's new sexual assault statutes were enacted to protect "autonomy" and therefore the victim's consent should be held vitiated whenever "the complainant would not have submitted" but for the defendant's "dishonesty").

(162.) See, e.g., Bryden, supra note 18, at 322 ("Virtually all modern rape scholars want to modify or abolish the force requirement as an element of rape."); sources cited supra note 17.

(163.) See supra note 54 (citing authors who have read Lawrence as standing for a right of sexual autonomy).

(164.) 410 U.S. 113 (1973).

(165.) Commonwealth v. Mlinarich, 542 A.2d 1335, 1337 (Pa. 1988).

(166.) Id.

(167.) Id.

(168.) Id.

(169.) Of course Mlinarich was guilty of "statutory" rape, but an appellate court reversed his conviction of "real" rape, and the supreme court affirmed by an equally divided vote. Id. at 1342.

(170.) See State v. Thompson, 792 P.2d 1103 (Mont. 1990) (acquitting the defendant of rape).

(171.) United States v. Dowd, 417 F.3d 1080, 1086-87 (9th Cir. 2005) (upholding a jury instruction stating that the terms "coercion" and "duress" are interchangeable); United States v. Helem, 186 F.3d 449,453 (4th Cir. 1999) (same). Where the two terms are distinguished, "duress" is typically said to be coercion accomplished by "physical force"--a qualification that would not assist the objection. E.g., State v. Woods, 357 N.E.2d 1059, 1065 (Ohio 1976) (emphasis added) (quoting McKenzie-Hague Co. v. Carbide & Carbon Chems. Corp., 73 F.2d 78, 82-83 (8th Cir. 1934)).

(172.) E.g., Wheeler v. Comm'r, 528 F.3d 773, 779 (10th Cir. 2008) (quoting 28 Richard A. Lord, Williston on Contracts [section] 71:11 (4th ed. 2003)).

(173.) See, e.g., Bogan v. City of Chicago, 644 F.3d 563, 568-69 (7th Cir. 2011) (citing Valance v. Wisel, 110 F.3d 1269, 1278-79 (7th Cir. 1997)).

(174.) For the view that rape law should be understood as increasing the efficiency of sexual transactions, see Richard A. Posner, An Economic Theory of the Criminal Law, 85 Colum. L. Rev. 1193, 1199 (1985) ("[T]he prohibition against rape is to the marriage and sex 'market' as the prohibition against theft is to explicit markets in goods and services.").

(175.) See Catherine L. Carpenter, On Statutory Rape, Strict Liability, and the Public Welfare Offense Model, 53 Am. U. L. Rev. 313, 352 (2003) (discussing the rule that a "mistake-of age" is no defense).

(176.) See, e.g., Armer v. State, 773 P.2d 757, 758-59 (Okla. Crim. App. 1989); State v. Pendand, 719 P.2d 605, 606 (Wash. Ct. App. 1986); see also, e.g., Va. Code Ann. [section] 16.1-269.1 (2010) (providing for prosecution as adults of persons fourteen years of age or older charged with rape).

(177.) See Christopher & Christopher, supra note 128, at 79 (arguing that sex by "adult impersonation ... constitutes rape by fraud").

(178.) See, e.g., State v. Greensweig, 644 P.2d 372, 375 (Idaho Ct. App. 1982) ("Nature has provided that only a male can accomplish the penetration by sexual intercourse."); Brooks v. State, 330 A.Ed 670, 673 (Md. Ct. Spec. App. 1975).

(179.) See, e.g., State v. Stevens, 510 A.2d 1070, 1071 (Me. 1986); People v. Liberta, 474 N.E.2d 567, 575-78 (N.Y. 1984); Ex parte Groves, 571 S.W.zd 888, 892-93 (Tex. Crim. App. 1975) (en banc).

(180.) See Caroline Black, Ex-Marine Jebidiah James Stipe Gets 60 Years for Craigslist Rape Plot, CBS NEWS, June 29, 2010, http://www.cbsnews.com/8301-504083_162-20009162-504083.html.

(181.) See William Browning, 'Terribly Sorry': Craigslist Rapist Receives Same Sentence as Man Who Solicited Assault, STAR-TRIBUNE (Casper, Wyo.), June 30, 2010, http://trib.com/news/local/article_4bo4f85a-2za5-54b5-a3ao-798aaob8f2bf.html.

(182.) See id.

(183.) In Alabama, "sexual misconduct," a misdemeanor, includes sex by "fraud or artifice." Ala. Code [section] 13A-6-65(a)(1) (LexisNexis 2012); see also Va. Code Ann. [section] 18.2-67.4(A)(i) (2004) (defining "sexual battery," a misdemeanor, to include sexual touchings obtained by "ruse").

(184.) See 17 C.F.R. [section] 240.10b-5 (2012) (making it unlawful for any person to "make any untrue statement of a material fact or to omit to state a material fact ... in connection with the purchase or sale of any security").

(185.) See, e.g., N.J. Stat. Ann. [section] 2C:34-5 (West 2011) (criminalizing sexual intercourse "without the informed consent of the other person" by anyone infected with venereal disease or HIV); see also Cal. Health & Safety Code [section] 120291(a) (West 2012) (similar). But note that this is already assault or battery. See infra note 227.

(186.) Coker v. Georgia, 433 U.S. 584, 597 (1977).

(187.) State ex rel. M.T.S., 609 A.2d 1266, 1278 (N.J. 1992).

(188.) E.g., Schulhofer, supra note 17, at 16-17; McGregor, supra note 10, at 236; Robert Uerpmann-Wittzack, Personal Rights and the Prohibition of Discrimination, in European Fundamental Rights And Freedoms 67, 70 (Dirk Ehlers ed., 2007).

(189.) See, e.g., Katherine M. Franke, The Central Mistake of Sex Discrimination Law: The Disaggregation of Sex from Gender, 144 U. Pa. L. Rev. 1, 4, 9 (1995); Note, The Supreme Court, 1985 Term-Leading Cases, 100 Harv. L. Rev. 100, 219 (1986) (referring to the "current societal trend of recognizing that individuals have a fundamental right to define their own sexual identities").

(190.) See Immanuel Kant, Groundwork Of The Metaphysic Of Morals 56-57 (H.J. Patton trans., Harper & Rowe 1964) (1785).

(191.) Immanuel Kant, Lectures On Ethics 163 (Paul Mentzer ed., Louis Infield trans., 1963).

(192.) Immanuel Kant, The Metaphysics Of Morals 62 (Mary Gregor ed. & trans., Cambridge Univ. Press 1996) (1797)

(193.) Id.

(194.) David A.J. Richmonds, Sex, Drugs, Death, And The Law: An Essay On Human Rights And Overcriminalization 54 (1982).

(195.) Id.

(196.) See, e.g., id. at 117 (arguing that people should be "guaranteed the greatest equal liberty of autonomous sexual expression compatible with a like liberty for all").

(197.) See, e.g., SIGMUND FREUD, CIVILIZATION AND ITS DISCONTENTS (1930), in 21 THE STANDARD EDITION OF THE COMPLETE WORKS OF SIGMUND FREUD 64, 66 (James Strachey ed. & trans., 1961) ("At the height of being in love, the boundary between ego and object threatens to melt away.").

(198.) For Hegel, at least as Kojeve famously read him, desire always desires the other's desire. See ALEXANDRE KOJEVE, INTRODUCTION TO THE READING OF HEGEL 6 (Allan Bloom ed., James H. Nichols trans., 1980) ("[I]n the relationship between man and woman, for example, Desire is human only if the one desires, not the body, but the Desire of the other."); see also 11 JACQUES LACAN, THE SEMINAR OF JACQUES LACAN: THE FOUR FUNDAMENTAL CONCEPTS OF PSYCHOANALYSIS 235 (Jacques-Alain Miller ed., Alan Sheridan trans., 1981) ("Man's desire is the desire of the Other."). But the desire desire desires is not primarily physical. The idea is that human desire not only seeks pleasure from the other, but also needs something from the other's consciousness. See G.W.F. HEGEL, PHENOMENOLOGY OF SPIRIT [section] [section] 175-76, at 110 (A.V. Miller trans., Oxford Univ. Press 1977) (1807) ("Self-consciousness achieves its satisfaction only in another self-consciousness.") (emphasis omitted). If so, there is something in human sexual desire irreducible to, and longing to break from, individual self-determination.

(199.) Ripstein has been particularly attentive to these difficulties. See, e.g., ARTHUR RIPSTEIN, FORCE AND FREEDOM: KANT'S LEGAL AND POLITICAL PHILOSOPHY 15 (2009) (articulating a principle of "independence" along these lines and contrasting it with "more robust accounts of autonomy"). Ripstein finds this "independence" in Kant's Universal Principle of Right. Id. at 13.

(200.) As a right solely against others' affirmative wrongs, thin autonomy is not measured by an agent's actual "ability to get what he or she wants." Id. at 33. If thin autonomy were violated by others' refusing to have relations with the agent, or increased the more the agent could satisfy his desires, it would become thick autonomy, subject to all the difficulties discussed above.

(201.) See, e.g., id. at 43-44, 128-29 (condemning force and fraud, both of which vitiate consent).

(202.) See supra notes 58 and 78.

(203.) While forced prostitution and crimes against prostitutes are sickeningly common, see Margaret A. Baldwin, Split at the Root: Prostitution and Feminist Discourses of Law Reform, 5 YALE J.L. & FEMINISM 47, 87 (1992) (describing prostitutes as "rapable, bearable, killable"), if sexual autonomy were a fundamental, constitutional right, the mere fact of selling sex for money could not be taken as a surrender of autonomy sufficient to sustain a categorical ban on prostitution any more than selling stories for money indicates a surrender of autonomy sufficient to sustain a ban on for-profit fiction or journalism. Instead, the idea of sexual autonomy as a fundamental right implies that prostitution should be constitutionally protected. See, e.g., RICHARDS, supra note 194, at 84-127 (arguing that autonomy, properly understood, argues in favor of a right to prostitution); Gowri Ramachandran, Against the Right to Bodily Integrity: Of Cyborgs and Human Rights, 87 DENV. U. L. REV. 1, 53 (2009) ("[I]t is arguable that not only should we abandon the claim that prostitution violates fundamental rights to bodily integrity, but we should also recognize a fundamental right to engage in prostitution, given the importance of sexual activity to identity formation and culture.").

(204.) See, e.g., John Gardner & S. Shute, The Wrongness of Rape, in OXFORD ESSAYS IN JURISPRUDENCE, FOURTH SERIES 193 (J. Horder ed., 2000).

(205.) For an interesting treatment connecting self-possession and dignity, see GEORGE KATEB, HUMAN DIGNITY 164-69 (2011). Waldron has also made this connection. See Jeremy Waldron, Dignity, Rights and Responsibilities, 43 ARIZ. ST. L.J. 1107, 1126-27 (2012). Self-possession-and especially a woman's right to it--has occasionally been cited as an important interest protected by rape law. See, e.g., Jill Elaine Hasday, Contest and Consent: A Legal History of Marital Rape, 88 CALIF. L. REV. 1373, 1413-14, 1421-22 (2000); Larson, supra note 58, at 425-26. But in these discussions, the word is sometimes used as a synonym of self-determination or self-expression, a meaning substantially different from what I have in mind. See, e.g., Larson, supra note 58, at 425 (defining "sexual self-possession" in terms of" a person's interest in sexual self-expression through acts and with partners that satisfy her present desires and purposes").

(206.) But c.f. Jane Kim, Taking Rape Seriously: Rape as Slavery, 35 HARV. J.L. & GENDER 263 (2012) (arguing that all rape should be considered a form of slavery).

(207.) Needless to say, many rapes do involve torture. See, e.g., John Eligon, Prosecutor Details Rape That Lasted 19 Hours, N.Y. TIMES, June 6, 2008, http://www.nytimes.com/2008/06/06/nyregion/06rape.html (describing the ordeal of a Columbia University graduate student whose lips were glued together and body burned during her extended rape).

(208.) Because I have described the right to self-possession primarily by reference to paradigmatic or core violations, I've said very little about cases lying more toward the periphery of the concept (Is kidnapping a violation of self-possession? What about someone forced to smoke a cigar against her will?). In this Article, my hope is only to have provided a working idea of the right to self-possession; if the core cases are clear, that is enough for present purposes. I hope in future work to develop a fuller account of the right to self-possession and its connection to dignity.

(209.) Anthony Ramirez, Firsthand Experience of Rape, and Resiliency, N.Y. TIMES, Dec. 28, 2007, http ://www.nytimes.com/2007/12/28/nyregion/281ives.html.

(210.) Contra Chris McGreal, Rape Case To Force US Defence Firms into the Open, GUARDIAN (London), Oct. 15, 2009, http://www.guardian.co.uk/world/2009/oct/15/defence -contractors-rape-claim-block.

(211.) Ramirez, supra note 209.

(212.) See, e.g., ESTRICH, supra note 17, at 1-15.

(213.) See, e.g., JANET HALLEY, SPLIT DECISIONS: How AND WHY To TAKE A BREAK FROM FEMINISM 345 (2006) (asking whether "the politics of injury and of traumatized sensibility" might be "helping to authorize and enable women as sufferers").

(214.) This is particularly obvious in the case of male rape-horror, which, as expressed in contemporary American culture, barely bothers to disguise its fraternity with the view that male homosexuality is disgusting or contaminating or feminizing.

(215.) See, e.g., LES SUSSMAN & SALLY BORDWELL, THE RAPIST FILE: INTERVIEWS WITH CONVICTED RAPISTS 32-33 (2000) (quoting convicted rapists) ("What I really enjoyed was when I tied them down. ... The pain part of it was the best part."); id. at 213 ("This time my excitement was at a peak because this young girl, who wasn't more than 17, was actually trembling with fright. ... I used to threaten murder, slicing their throats with a knife I produced, which was the best, it excited me to see the fright and sheer dominance I had over each and every one of them.").

(216.) Coker v. Georgia, 433 U.S. 584, 597 (1977) (quoting LISA BRODYAGA ET AL., NAT'L INST. OF LAW ENFORCEMENT & CRIMINAL JUSTICE, RAPE AND ITS VICTIMS: A REPORT FOR CITIZENS, HEALTH FACILITIES, AND CRIMINAL JUSTICE AGENCIES 1 (1975)).

(217.) See JED RUBENFELD, FREEDOM AND TIME: A THEORY OF CONSTITUTIONAL SELF-GOVERNMENT 223-27, 248-53 (2001).

(218.) See LAURENCE H. TRIBE, CONSTITUTIONAL CHOICES 243 (1985) (describing the prohibition of abortion as "conscript[ing] women ... as involuntary incubators").

(219.) See RUBENFELD, supra note 217, at 221-55.

(220.) Lawrence v. Texas, 539 U.S. 558, 577 (2003) (quoting approvingly Bowers v. Hardwick, 478 U.S. 186,216 (1986) (Stevens, J., dissenting)).

(221.) See Lawrence, 539 U.S. at 579-85 (O'Connor, J., concurring) (concurring on equal protection grounds). To be sure, antihomosexuality laws, at least in the past, were aimed at forcing individuals into specific, state-dictated heterosexual relationships. Hence, such laws in the past could have been said to violate the antitotalitarian right I have ascribed to Roe. To the extent that such laws continued to bear their past purpose, they still could.

(222.) If consensual sex were genuinely constitutionally protected on autonomy grounds, engaging in it for profit should not be prohibitable--just as for-profit religions practices or novels can't be proscribed. See supra note 203. Similarly, regardless of the possibility of genetic abnormalities, prohibiting all incest among adults would seem plainly unjustifiable, and as to public sexuality, states might legitimately seek to protect children from exposure, but a complete ban would again seem plainly overbroad.

(223.) United States v. Kozminski, 487 U.S. 931, 944 (1988); see Bailey v. Alabama, 219 U.S. 219, 240-45 (1911); United States v. Booker, 655 F.2d 56z, 566 (4th Cir. 1981) (concluding that slavery or involuntary servitude exists where "control over [individuals'] lives" is "maintained through the threat of criminal sanctions ... or through physical force" (citations omitted)); United States v. Shackney, 333 F.2d 475, 481-85 (2d Cir. 1964). This understanding may depart from international law, which defines slavery in terms not of forced service, but of the existence of legal incidents of ownership. See Slavery Convention art. 1(1), Sept. 25, 1926, 212 U.N.T.S. 17 (as amended in 1953).

(224.) 18 U.S.C. [section] 2340(1) (2006).

(225.) The term is defined as "prolonged mental harm caused by" (1) the intentional infliction of severe physical pain; (2) the administration of "mind-altering substances"; (3) the threat of imminent death; or (4) the threat that another person will be imminently subjected to any of these things, ld. [section] 2340(2).

(226.) See, e.g., David Luban & Henry Shue, Mental Torture: A Critique of Erasures in U.S. Law, 100 GEO. L.J. 823, 836-37 (2012).

(227.) Sex-by-deception, without more, would never be rape on a right-to-self-possession view. Needless to say, egregious acts of sexual deception-for example, lying about a sexually transmissible disease or perhaps even impersonating a spouse--could be independently criminalized, see supra note 185, or they could amount to battery. See, e.g., Leleux v. United States, 178 F.3d 750, 755 (5th Cir. 1999) ("[W]here an individual fraudulently conceals the risk of sexually transmitting a disease, that action vitiates the partner's consent and transforms consensual intercourse into battery. ..."); Boyett v. State, 159 So. 2d 628, 630-31 (Ala. Ct. App. 1964) (affirming the assault conviction of a man who posed as a doctor to examine a woman); IL v. Cuerrier, [1998] 2 S.C.R. 371 (Can.) (reaching a similar conclusion to that reached in Leleux).

(228.) See, e.g., State v. Thompson, 792 P.2d 1103 (Mont. 1990) (holding that a high school principal who coerced sex from a student by threatening not to allow her to graduate could not be convicted of sexual intercourse without consent, absent evidence that he threatened her with imminent death, bodily injury, or kidnapping).

(229.) But cf. WERTHEIMER, supra note 81, at 174 (suggesting that threats are coercive only when they "propose to violate [someone's] rights"). This test is puzzling. That a threat was lawful for the threatener doesn't make it less coercive for the threatened. In any event, odd results follow. For example, in Mlinarich, where the defendant induced a 14-year-old girl to have sex with him by threatening to return her to a juvenile prison, apparently the defendant did not commit rape, provided that he had the legal right to return her to prison (which he may well have had).

(230.) Commonwealth v. Mlinarich, 542 A.2d 1335 (Pa. 2988).

(231.) See id. at 1342.

(232.) See, e.g., People v. Dohring, 59 N.Y. 374 (1874) (reversing a rape conviction where the defendant had locked a fourteen-year-old girl in a barn).

(233.) E.g., Whittaker v. State, 7 N.W. 431, 432 (Wis. 1880) ("Consenting is to be willing, as a condition of the mind."). Traditional-era judges expressed acute concern about men who had sex with women who outwardly said no to sex while actually "burning" for it. E.g., Jones v. State, 16 S.E. 380, 383 (Ga. 1892) (warning of the "charming woman, ... wishing beyond adequate expression what she must not even attempt to express, and seemingly resisting what she burns to enjoy" (citation omitted) (emphasis added)). In essence, traditional judges asked whether the woman's body was saying yes--the most egregious example of which was the ancient rule that pregnancy barred a claim of rape. See, e.g., 18 CHARLES VINER, A GENERAL ABRIDGMENT OF LAW AND EQUITY 153 (London, G.G.J. et al. eds., 2d ed. 1793) ("If the feme at the time of the supposed rape conceives with child by the ravisher, this is no rape; for no woman can conceive, unless she consents." (emphasis omitted)).

(234.) See, e.g., JOAN McGREGOR, IS IT RAPE?: ON ACQUAINTANCE RAPE AND TAKING WOMEN'S CONSENT SERIOUSLY 117 (2005) ("There are two major accounts of the nature of consent: the attitudinal and the performative.").

(235.) Deception could vitiate consent to sadomasochistic violence (perhaps counterintuitively, the argument presented thus far is agnostic on this point), but it seems plausible that at least some material deception should not be held to do so-because the goal is not sexual autonomy.

(236.) A 2988 survey found that over thirty-nine percent of undergraduate women at a Texas university had pretended not to want sex they actually wanted before having it. See, e.g., Charlene L. Muehlenhard & Lisa C. Hollabaugh, Do Women Sometimes Say No When They Mean Yes? The Prevalence and Correlates of Women's Token Resistance to Sex, 54 J. PERSONALITY & SOC. PSYCHOL, 872 (1988).

(237.) Commonwealth v. Berkowitz, 641 A.2d 1161 (Pa. 1994).

(238.) See Dan M. Kahan, Culture, Cognition, and Consent: Who Perceives What, and Why, in Acquaintance-Rape Cases, 158 U. PA. L. REV. 729, 741 (2010) (describing reactions to the case). Some claim that women frequently "freeze" in response to unwanted sexual advances. See, e.g., Jennifer J. Freyd, What Juries Don't Know: Dissemination of Research on Victim Response Is Essential for Justice, TRAUMA PSYCHOL. NEWSL. (Div. 56, Am. Psychological Ass'n, Washington, D.C.), Fall 2008, at 16 (claiming that studies show that many women in these circumstances fall into a "tonic immobility" characterized by "dissociation" and "paralysis" (citation omitted)); see also People v. Barnes, 721 P.2d 110, 118 (Cal. 1986) (en banc) (" [M]any women demonstrate 'psychological infantilism'.., in the face of sexual assault." (citation omitted)). I would proceed with extreme caution before accepting these claims of women's "infantilism." See Vivian Berger, Not So Simple Rape, 7 CRIM. JUST. ETHICS 69, 76 (1988) (reviewing ESTRICH, supra note 17) ("[O]verprotection risks enfeebling instead of empowering women. ... "). But note that this reaction is said to be a response to "assault," Barnes, 721 P.2d at 118; Freyd, supra, at 16, and if there has been an assault, then of course the force requirement is satisfied.

(239.) Although not on a par with sex, someone might say "no," for example, while allowing himself to be seated on a roller coaster or while jumping with friends off a high rock into a river. This "no" need not mean yes. It could mean that the speaker has intensely mixed feelings or that what he is doing conflicts with his better judgment. Such a "no" can also express a sincere wish, request, or even command that another stop what he's doing even though if the other doesn't stop, the speaker knows he will then choose to go forward too, as when someone says "no" or "don't" or "please stop" as someone serves him dessert-then eats the dessert. Again, the example is obviously not comparable to sex; it serves simply to illustrate the distinction between saying "no," which can accompany voluntary action, and being forced into an action by violence.

(240.) See, e.g., Sexual Offences Act, 2003, c. 42, [section] [section] 2, 75(2)(d) (U.K.); State v. Moorman, 358 S.E.2d 502, 505-06 (N.C. 1987).

(241.) See, e.g., In re Childers, 310 P.2d 776, 778 (Okla. Crim. App. 1957) ("It is easily understood, and universally recognized, that a person who is unconscious.., is incapable of exercising any judgment in any matter whatsoever.").

(242.) See, e.g., United States v. Bayes, 210 F.3d 64, 69 (1st Cir. 2000) ("patently offensive"); People v. Gray, 131 Cal. Rptr. 3d 674, 684 (Dist. Ct. App. 2011) (any "harmful or offensive" touching (quoting People v. Pinholster, 824 P.2d 571, 622 (1992))), reh'g granted, 264 P.3d 821 (Cal. 2011).

(243.) Gardner and Shute, supra note 204, at 3-8, go so far as to describe an idealized sex act with an unconscious woman, doing no harm to her and not even remembered by her, as the only form of "pure rape," on the ground that rape victims' actual experiences (of fear, violation, degradation, pain, and so on) are mere "distracting epiphenomena" that a genuinely "philosophical" account of rape should ignore. But Gardner and Shute fail to consider whether every act of sex with an unconscious person is always rape in the first place; they simply assume it. For a quite different point of view, see TALK TO HER (Sony Pictures Classics 2002), which portrays a comatose ballet dancer whose longtime caretaker has intercourse with her; she becomes pregnant and wakes from her coma, apparently as the result of childbirth. I thank Professor Sandra Macpherson for bringing this film to my attention in connection with this issue.

(244.) See, e.g., Sy Moskowitz, American Youth in the Workplace: Legal Aberration, Failed Social Policy, 67 Aim. L. REV. 1071, 1083 (2004) ("Statutory rape statutes conclusively presume that an underage victim is incapable of giving consent in most states.").

(245.) See People v. Young, 235 Cal. Rptr. 361,365-67 (Ct. App. 1987) ; Carpenter, supra note 175, at 337.

(246.) See, e.g., People v. Soto, 245 P.3d 410, 418 (Cal. 2011) ("Unlike rape, the wrong punished by the lewd acts statute is not the violation of a child's sexual autonomy, but of its sexual innocence.").

(247.) See, e.g., State v. Galati, 365 N.W.2d 575, 578 (S.D. 1985); see also Rv. Bree, [2008] Q.B. 131 [paragraph] 24 (Eng.) (distinguishing between "voluntary" intoxication and "situations in which the complainant is involuntarily at a disadvantage" as for example "when a drink is 'spiked'").

(248.) See, e.g., Shlomit Wallerstein, 71 Drunken Consent Is Still Consent'--Or Is It? A Critical Analysis of the Law on a Drunken Consent to Sex Following Bree, 73 J. CRIM. L. 318, 328 (2009) (arguing, on the premise that rape is unconsented-to sex, that the "only question is ... whether the victim was able to give a valid consent" and that "the question of how" the victim's inebriation "came about (through ... voluntary conduct of the victim or otherwise) is irrelevant").

(249.) See, e.g., People v. Giardino, 98 Cal. Rptr. 2d 315, 324 (Ct. App. 2000).

AUTHOR. Robert R. Slaughter Professor of Law, Yale Law School. This Article benefited immeasurably from reactions and assistance given to me by a great many people, including Nomi Stolzenberg, Anne Dailey, Sandra Macpherson, Gideon Yaffe, Tracy Meares, Dan Kahan, Scott Shapiro, Daniel Markovits, Bruce Ackerman, Paul Gewirtz, Richard Brooks, Elizabeth Emens, Charles Fried, Katherine Franke, Adam Cohen, Suzanne Goldberg, Leah Bellshaw, Caroline Harkins, Elizabeth Hanft, Julia Malkina, Danielle Sassoon, Josh Meltzer, Sophie Brill, Lina Tetelbaum, Josh Geltzer, Marisa West, Noam Finger, and Amy Chua.
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Title Annotation:IV. The Merits of Deceptive Sex and of Sexual Autonomy through Conclusion, with footnotes, p. 1413-1443
Author:Rubenfeld, Jed
Publication:Yale Law Journal
Date:Apr 1, 2013
Words:21449
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