Rape Law and Sexual Autonomy: Understanding the Implications of Consent and Deception, Exams of Law

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Jed rubenfeld

The Riddle of Rape-by-Deception and the Myth of

Sexual Autonomy

abstract. “Rape-by-deception” is almost universally rejected in American criminal law. But if

rape is sex without the victim’s consent—as many courts, state statutes, and scholars say it is—then sex-by-deception ought to be rape, because as courts have held for a hundred years in virtually every area of the law outside of rape, a consent procured through deception is no consent at all. Moreover, rejecting rape-by-deception fails to vindicate sexual autonomy, which is widely viewed today as rape law’s central principle and, indeed, as a constitutional right. This Article argues against the idea of sexual autonomy and against the understanding of rape as unconsented-to sex. A better understanding, it is argued, can be arrived at by comparing rape to slavery and torture, which are violations of a person’s fundamental right to self-possession. This view of rape can explain the rejection of rape-by-deception, which current thinking cannot, but it will also suggest that rape law’s much-maligned force requirement may not be so malign after all.

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.

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

• introduction article contents
  • american sex law i. sexual autonomy as the fundamental principle of
    • A. Sexual Autonomy and the Right to Privacy
    • B. Sexual Autonomy and Decriminalization
    • C. Sexual Autonomy and the New Sex Codes
    • D. Sexual Autonomy and Rape Law
      • 1. The Enigma of Rape Law
      • 2. Rape as a Crime of Defilement—Female Defilement
      • 3. The Turn to Sexual Autonomy
        • Rape Law Together E. Summary: Putting Privacy, Decriminalization, Sex Codes, and
• ii. the riddle of rape-by-deception - A. The General Rule and Its Two Exceptions - B. The Conventional Justifications—and Why They Fail - C. Deception and Defilement - Rape-by-Deception D. What Sexual Autonomy Says—or Ought To Say—About - E. Squaring Sex-by-Deception with Sexual Autonomy? - 1. Victims of Deception Do in Fact Consent - 2. Deceived Sex Is Wanted Sex - 3. Lies Are Customary and Expected in Sexual Contexts - 4. Deception Need Not Undermine Autonomy
• iii. three options, including a compromise - A. Sticking with Force - B. Embracing Sexual Autonomy - C. The Compromise: Not Force, but Coercion - D. Conclusion: The Problem with Coercion
• iv. the merits of deceptive sex and of sexual autonomy
• the yale law journal 1 2 2 :
  • A. Should Sex-by-Deception Be a Crime?
    • 1. An Interesting Implication of Rape-by-Deception
    • 2. The Merits of Deceptive Sex
  • B. The Myth of Sexual Autonomy
    • 1. Sexual Autonomy’s Unattainability
    • 2. And Its Undesirability
    • 3. Sexual Autonomy as a Right Against Wrongful Conduct
• v. from autonomy to self-possession
  • A. Sexual Autonomy’s Irrelevance to Rape Law
  • B. Rape as a Violation of Self-Possession
  • C. Rape Law’s Core Problem Revisited
  • D. Self-Possession and the Right to Privacy
  • E. Self-Possession and Force
  • F. An Objection: Self-Possession a Floor, Not a Ceiling
  • G. Doctrine
    • 1. Defining Force
    • 2. Masochism, Wantedness, and Mistake
    • 3. No Means No—but It May Not Mean Rape
    • 4. Unconscious, Underage, and Intoxicated Sex
• conclusion

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

introduction

In 2010, a man was convicted of rape in Jerusalem—not for forcing sex on

his victim, but for posing as a “Jewish bachelor” with a “serious romantic”

interest in her:

If [the complainant] had not thought the accused was a Jewish bachelor interested in a serious romantic relationship, she would not have co-operated with him....

.... The court is obliged to protect the public interest from sophisticated, smooth-tongued and sweet-talking criminals who can deceive innocent victims at an unbearable price—the sanctity of their bodies and souls. 1

Even as the Kashour case was pending in Israel, a bill was pending in

Massachusetts authorizing life imprisonment for anyone who “has sexual

intercourse... with a person having obtained that person’s consent by the use of

fraud, concealment or artifice .” 2 In Tennessee, rape is already defined to include

“sexual penetration... accomplished by fraud.” 3 A man commits rape in

Idaho, under a 2011 amendment, when he has sex with a woman who, because

of his “artifice, pretense or concealment,” believes him to be “someone other

than” who he is. 4 In Canada, a Supreme Court Justice has stated that rape is

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 Why Did Charges Change Against Arab Man? , H AARETZ , Sept. 17, 2010, http://www.haaretz.com/weekend/week-s-end/from-rape-to-racism-how-and-why -did-charges-change-against-arab-man-1.314319. 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 , J ERUSALEM P OST , 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/ /House/H1494 (emphasis added).

3. TENN. CODE ANN. § 39-13-503(a)(4) (2010).

4. I DAHO CODE ANN. § 18-6101(8) (Supp. 2011). Interestingly, if a man is so deceived, it isn’t rape. Id. §§ 18-6101(7) to (8), 18-6108.

the yale law journal 1 2 2 : 1 3 7 2 2 0 1 3

committed whenever sex is procured through “dishonesty.” 5

Thus “rape-by-deception” is a live and intensifying issue in criminal law.

The problem it poses is easy to describe. Many—perhaps most—of us don’t

think “rape-by-deception” is rape at all. 6 Neither, as a rule, do our courts.^7 The

problem is that we ought to think it is rape, and courts ought to so hold, given

what we say rape is.

According to a very widely shared view, rape means sex without the

victim’s consent. The crime was often so understood by common law judges; 8

it is explicitly so defined in many modern statutes;^9 and it is frequently so

described in contemporary usage, both lay and legal. 10 But sex-by-deception is

sex without consent, because a consent obtained by deception, as courts have

long and repeatedly held outside of rape law, is “no consent” at all. 11

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

6. See, e.g. , Ryan McCartney, Could a Pick-Up Artist Be Charged with ‘Rape by Deception’? , NBC N EWS , http://www.msnbc.msn.com/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, § 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 F RANCIS WHARTON , A TREATISE ON CRIMINAL L AW § 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. S TAT. § 18-3-402 (2004) (defining “Sexual assault”); M ONT. CODE ANN. § 45-5-503(1) (2011) (defining “Sexual intercourse without consent”); UTAH CODE ANN. § 76-5-402(1) (LexisNexis 2003); Sexual Offences (Scotland) Act, 2009, (A.S.P. 9), § 1; Sexual Offences Act, 2003, c. 42, § 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 L OGAN, COUNTERBALANCE: GENDERED P ERSPECTIVES FOR W RITING AND L ANGUAGE 72 (1997) (“In public discourse, rape has become ‘unconsented sexual activity.’”); Joan McGregor, Force, Consent, and the Reasonable Woman , in I N H ARM’S WAY: E SSAYS IN H ONOR OF J OEL 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,

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

A person who enters your house pretending to be a meter reader commits

trespass (entry onto real property without consent);^12 a Ponzi-scheme swindler

commits larceny or theft (taking property without consent) “by deception”; 13 a

man posing as a doctor who “lays his hands on [a woman’s] person” commits

battery (offensive touching without consent). 14 “Fraud,” as Judge Learned

Hand put it, “will vitiate consent as well as violence.” 15 Why, then, isn’t

sex-by-deception rape?

The answer, for American courts, is that rape requires more than

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 plaintiff’s 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. (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. P ERKINS , 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 W AYNE R. L A FAVE & A USTIN W. S COTT , J R., S UBSTANTIVE CRIMINAL LAW § 8.7, at 396 (1986))).

14. RESTATEMENT (S ECOND ) OF TORTS § 892B(2) cmt. e, illus. 7 (1977); see, e.g. , Boyett v. State, 159 So. 2d 628, 630-31 (Ala. Ct. App. 1964); 1 W HARTON’ S CRIMINAL LAW § 835 (12th 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).

the yale law journal 1 2 2 : 1 3 7 2 2 0 1 3

nonconsent; it requires force , and deception isn’t force. 16 But this answer hardly

answers, not without an explanation of why rape requires force—an

explanation that has never been forthcoming. The force requirement makes

rape law blind to all the situations in which people, often women, are coerced

or manipulated into sex through social pressure or alcohol or other means

falling short of physical violence. 17 As a result, “[v]irtually all modern rape

scholars want to modify or abolish the force requirement as an element of

rape,” 18 and some jurisdictions have already eliminated it.^19

But this means rape law has a serious problem. Existing doctrine has no

trouble dismissing rape-by-deception claims, but only because of the

much-decried force requirement. If rape law were really to eliminate the force

requirement—as so many argue it should, as many statutes have already

seemingly done, and as courts have begun to do—then sex-by-deception would

and should be rape, because the legal definition of rape would then be sex

without consent, and a defrauded “consent,” like a coerced one, is no consent at

all.

This problem is by itself a considerable challenge. It implicates the most

fundamental questions about what rape is and how the law ought to define it.

But the problem runs deeper still.

Just as we speak of “antidiscrimination law,” referring to an interlocking set

of constitutional rights, statutes, regulations, and judicial decisions, so too we

might speak of “sex law,” comprising the same elements. And we might say

that sex law in this country is converging on a single unifying principle: the

right to sexual autonomy.

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

17. See, e.g. , S USAN E STRICH , 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... .”); S TEPHEN J. S CHULHOFER, U NWANTED S EX: THE CULTURE OF I NTIMIDATION 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 B UFF. 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).

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

The idea behind sexual autonomy is simple. People have a right to decide

for themselves with whom and under what circumstances to have sex. The

legal fight for this principle has been waged on several fronts, including:

Constitutionalization. Constitutional sex law commenced in earnest with

Griswold v. Connecticut , 20 and the Court’s most important recent decision in this

field, Lawrence v. Texas , 21 is widely read to stand for a right of sexual

autonomy. 22

Decriminalization. Long before Lawrence , sodomy prosecutions were rare,

and older sex crimes such as fornication and seduction had been abolished,

reflecting a conviction that private, consensual sex was not an appropriate

target of criminal law. 23

Sex codes. Sexual misconduct has long been regulated privately on college

campuses and elsewhere. But while such sex codes used to aim at prohibiting

sex, today their aim is different: to ensure that sexual activities are

consensual. 24

Rape law reform. Finally, over the last several decades, radical

transformation came to rape law as well. Old doctrines have been discarded,

reopening core questions about how rape ought to be defined, 25 and today, the

central purpose widely ascribed to rape law is the protection of sexual

autonomy. 26

Thus sexual autonomy seems to provide a single, clear, appealing

foundation for the regulation of sex in the United States, unifying its major

components. But there is an anomaly in the system: sex-by-deception. From

autonomy’s viewpoint, fraud is as great an evil as force. 27 Precisely by failing to

punish rape-by-deception, sex law fails to vindicate sexual autonomy. This

failure would seem to put rape law in tension not only with its own central

principle, but with the rest of American sex law, including Lawrence. 28

The purpose of this Article is to demonstrate that sex-by-deception does in

fact pose all the difficulties just outlined. It requires a rethinking of what rape

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.

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really is. It also requires sex law to pick its poison—to decide if it does or

doesn’t stand for sexual autonomy, whether that means embracing

rape-by-deception or reconsidering Lawrence. Finally, it requires a reevaluation

of the ideal of autonomy itself, at least as applied to sexuality.

Part I will trace the emergence of sexual autonomy as the fundamental

principle of American sex law. Part II will lay out rape-by-deception doctrine

and the difficulties it creates. Part III maps the main options available to rape

law once these difficulties are exposed: (1) sticking with the force requirement

in order to say no to rape-by-deception; (2) embracing sexual autonomy and

with it a much broader doctrine of rape-by-deception; and (3) staking out a

compromise in which coercive sex would be rape, but deceptive sex would not.

This compromise would, I will argue, capture many people’s intuitions, beat a

retreat from the force requirement’s worst aspects, and bring rape law closer to

vindicating sexual autonomy.

Parts IV and V of this Article—well, Parts IV and V should probably never

have been written. Many readers will disagree with them. To begin with, I will

reject the coercion-based compromise just described. Its half-logic is too

unprincipled, its results contradictory. Instead, Part IV will oppose the

principle of sexual autonomy altogether. Notwithstanding Lawrence , I will

suggest that there is and should be no fundamental right to sexual autonomy.

The great principle of individual autonomy hits a kind of limit in sexuality,

where the pursuit of bodily and psychological conjugation makes the goal of

autonomy strangely chimerical, at odds with desire itself.

But how should rape be understood if not in terms of sexual autonomy?

Part V lays out an answer. Rape violates what I will call the right to

self-possession. The right to self-possession is best illustrated by two other

offenses that also violate it: slavery and torture. Rape should be thought about,

I will argue, the way we think about those two crimes. Every act of rape may

not be an act of slavery or torture, but all rape shares core elements of both.

A warning: this way of seeing rape will have at least one glaring weakness.

It will suggest that the much-maligned force requirement might not be so

malign after all.

Taking Parts I to V together, the argument will be as follows: Current

rape-by-deception doctrine is unjustifiable given today’s predominant,

sexual-autonomy-based view of rape. If rape means sex without consent,

sex-by-deception ought to be rape. At a minimum, given principles of sexual

autonomy, sex-by-deception ought to be very broadly criminalized, if not

under the name of rape, then as a separate (perhaps lesser) offense. My

conclusion, however, is that sex-by-deception should not be broadly

criminalized; instead the mistake lies in the autonomy-based view of

rape—indeed in the whole notion of sexual autonomy as a fundamental right.

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

For American sex law in general, this conclusion suggests a rethinking of

Lawrence and related cases. For rape law, the implication is that rape cannot be

understood merely as unconsented-to sex; a certain kind of force, to be

explained below, is in fact central to the crime.

i. sexual autonomy as the fundamental principle of

american sex law

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

And almost all sex was illegal.

If an unmarried man and woman had sex, it was fornication. 29 If either had

a spouse, it was adultery in the married party and fornication in the other, or

adultery in both. 30 If a man lured a woman into bed through a promise of

marriage, he committed seduction. 31 If one was black and the other white, they

were chargeable with miscegenation. 32 If both were male, it was sodomy. 33 If

both were female, it was plainly an abomination, although no one seemed to

know exactly what kind. 34

Even a married couple could go to jail for having the wrong kind of sex. 35 If

they sought to prevent childbirth, they faced more criminal sanctions.^36 Merely

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

30. J OEL P RENTISS BISHOP , COMMENTARIES ON THE LAW OF STATUTORY CRIMES § 656, at 474- (3d ed. 1901).

31. 1 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 D ISTINCTIONS IN AMERICAN 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 § 754 (11th ed. 1912))). See generally W ILLIAM N. ESKRIDGE J R., D ISHONORABLE 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. See J ANET FARRELL BRODIE, CONTRACEPTION AND ABORTION IN N INETEENTH-CENTURY AMERICA 257 (1994) (noting that as of 1885 twenty-four states and the federal government

the yale law journal 1 2 2 : 1 3 7 2 2 0 1 3

possessing information about contraception could be a crime. 37

Thus went traditional American sex law. The only safe sex was

heterosexual, copulative, marital intercourse. 38 No kind of autonomy figured in

this legal landscape—not sexual, 39 not male, not female, not marital.

Today, things are slightly different. In the last several decades, a sex-law

revolution has taken place, in which sexual autonomy has emerged as

something like a fundamental right. This transformation has occurred across at

least four areas: the right to privacy; sex crimes; sex codes; and rape law. 40

A. Sexual Autonomy and the Right to Privacy

When the “right to privacy” first appeared in Griswold , 41 it did not imply a

right of sexual autonomy. The Griswold Court repeatedly emphasized that the

case involved “marriage” 42 and stressed the “repulsive” prospect of police

scouring the “sacred precincts of marital bedrooms” for evidence. 43 Thus

Griswold ’s privacy looked potentially quite narrow. 44

But in Eisenstadt v. Baird , 45 striking down a ban on the distribution (rather

than, as in Griswold , the use) of contraceptives, the Court declared that the

right to privacy protected every individual, “married or single,... from

unwarranted governmental intrusion into matters so fundamentally affecting a

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. REV. 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 H ASTINGS CONST. L.Q. 433, 441 & n.45 (2010).

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

42. Id. at 486.

43. 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).

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

person as the decision whether to bear or beget a child.” 46 Suddenly privacy

reached far beyond marriage and private places like the bedroom. Under

Eisenstadt , the new right to privacy seemed hardly to be about privacy at all. 47

What, then, was it about? No one really knew. But a year later, when the

Court decided Roe v. Wade , privacy began to look like it really might mean

sexual autonomy. Arguably, one of the most important elements of sexual

autonomy is reproductive autonomy. Thus did Richard Posner feel justified in

declaring that “in a series of decisions between 1965 and 1977, the Supreme

Court created a constitutional right of sexual or reproductive autonomy, which

it called privacy.” 48

But if Roe held out the promise of sexual autonomy, that promise was

dashed in Bowers v. Hardwick. 49 There the Court upheld the criminalization of

consensual sex acts traditionally considered immoral and offensive. 50 Seventeen

years later, however, Lawrence reversed Bowers.

Interestingly, the term “right to privacy” never appears in Lawrence.

Instead, the majority opinion speaks of autonomy. Justice Kennedy began that

opinion by declaring, “Liberty presumes an autonomy of self that includes...

certain intimate conduct.” 51 He also quoted Justice Stevens’s Bowers dissent,

calling the following two points “controlling”:

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

Where “two adults,” the Court concluded, with “full and mutual consent from

each other, engage[] in sexual practices,” the “State cannot... control their

46. Id. at 453.

47. See, e.g. , Radhika Rao, Property, Privacy, and the Human Body , 80 B.U. L. REV. 359, 360 n.

(2000) (“Many scholars suggest that the term ‘privacy’ itself is a misnomer.... ”).

48. RICHARD A. P OSNER, S EX AND REASON 324 (1992).

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

50. See id. at 196.

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

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

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destiny by making their private sexual conduct a crime.” 53

Given such statements, it’s no wonder that so many read Lawrence to have

enshrined sexual autonomy as a constitutional right. 54 Indeed, under Lawrence ,

the Fifth Circuit has struck down a ban on the sale of “sexual stimulation”

devices, holding that such a statute violated an individual’s “right to engage in

private intimate conduct of his or her choosing.” 55

B. Sexual Autonomy and Decriminalization

Over the course of the twentieth century, private (noncommercial)

consensual sex was almost wholly decriminalized. At times this transformation

was constitutionally mandated. Often, however, state legislatures and

prosecutors acted on their own.

Thus, fifty years ago, penal fornication and adultery statutes were already

so widely unenforced that the draftsmen of the Model Penal Code described

them as “dead-letter statutes.” 56 In many states, formal repeal followed. 57

53. Id. at 578.

54. See, e.g. , David S. Bogen, Slaughter-House Five: Views of the Case , 55 H ASTINGS 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 20 TH ANNUAL S ECTION 1983 CIVIL RIGHTS L ITIGATION 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. 1003, 1042 (2003) (asserting that Lawrence guarantees “a personal right of private sexual autonomy”); Hon. Diarmuid F. O’Scannlain, Speech, Rediscovering the Common Law , 79 N OTRE 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.2d 367 (Va. 2005) (striking down a fornication statute under Lawrence ).

56. M ODEL P ENAL CODE § 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 S UFFOLK U. L. REV. 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 A M. U. L. REV. 747, 756-57 (2005) (describing a few such cases while also noting that “there have been no prosecutions in most

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

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

Indeed, decades before Lawrence , many states had already repealed or

stopped enforcing their sodomy laws. 59 Rather than being mandated by the

Supreme Court, the widespread decriminalization of consensual sex paved the

way for the “sexual revolution” of the 1960s and thus, ultimately, for the

Court’s own decisions in cases like Griswold , Roe , and Lawrence.

C. Sexual Autonomy and the New Sex Codes

Outside criminal law, private sexual misconduct regulations have long been

common, especially at colleges. Traditionally, such sex codes aimed at blanket

sexual suppression.^60 By contrast, the typical college sex code today permits sex

on campus, seeking only to ensure one goal: consent.

For example, Duke University in 2010 defined “sexual misconduct” as “any

physical act of a sexual nature perpetrated against an individual without

consent.” 61 Under this provision, no genuinely consensual sex is misconduct.

Moreover, consent must be “informed,” 62 suggesting that deception might

negate it, and “power differentials,” whether “[r]eal or perceived,” can be

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 S AN D IEGO 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 E SKRIDGE, supra note 34, at 176-78 (“For several years after Stonewall, sodomy decriminalization indeed proceeded rapidly in many states.”).

60. See E RNEST E ARNEST , ACADEMIC P ROCESSION : AN I NFORMAL H ISTORY 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 S TUDENTS OF H ILLSDALE COLLEGE 40 (1860). Homosexual sex provoked, as usual, the harshest reprisals. See, e.g. , W ILLIAM W RIGHT , H ARVARD’ S S ECRET COURT : THE S AVAGE 1920 P URGE OF CAMPUS H OMOSEXUALS (2005) (describing the secret tribunal used at Harvard in 1920 to investigate and punish homosexuality).

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

62. Id.

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coercive, even when such coercion is “unintentional.” 63

Yale’s new 2011 provisions are similar. “Sexual misconduct” at Yale

includes any “conduct of a sexual nature that is nonconsensual”; “sexual

assault” includes “any kind of nonconsensual sexual contact.”^64 Consent in turn

is

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

Consent cannot be obtained from someone who is asleep....

....

Consent to some sexual acts does not imply consent to others, nor does past consent to a given act imply ongoing or future consent.^65

Assuming these regulations are to be taken seriously—as a disciplinary code

Yale intends to enforce, rather than, say, a display of legally useful institutional

concern 66 —some interesting results follow. Blowing a kiss to one’s boyfriend

without asking him first could fit the definition of sexual misconduct at Yale

(“conduct of a sexual nature” without a “clear ‘yes’” or “unambiguous”

“agreement” to that “specific... activity”). Kissing a girlfriend when she’s

asleep is apparently “assault.” Even where two students willingly have sex,

either (or both) could be charged with sexual assault if there was any

“ambiguity” about which acts they had consented to. 67

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 2011 “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. D EP ’ T OF E DUC. (Apr. 4, 2011), http://www.ed.gov/about/offices/list/ocr /letters/colleague-201104.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”).

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

Given such consequences, it may be wrong to take Yale’s regulations at face

value. Nonetheless, they strongly express a sexual-autonomy-based ideal of full

disclosure, of “positive sexual experiences” achieved through “[t]alking,” and

of advance, affirmative consent to each specific act engaged in.

D. Sexual Autonomy and Rape Law

Like the Supreme Court’s right-to-privacy jurisprudence, rape law has been

for decades a body of law in search of a principle, but has now seemingly found

that principle in sexual autonomy.

1. The Enigma of Rape Law

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

of its own?

Every rape is an assault or battery. Every rapist could be punished on that

ground alone. The law, however, does not treat rape that way. Rape law makes

an assault involving particular body parts a special crime of its own—one of the

most serious in all of criminal law, punishable by death until not long ago, 68

and often by life imprisonment still today. 69 The crime of rape is in this respect

unique. There is, for example, no special crime of assaulting someone’s hands

or face. 70 Nor is there a general crime of penetrating the body. Someone who

force-feeds another has committed assault and battery, if she has committed an

offense at all.

To ask why rape is its own crime may, I know, seem deliberately obtuse or

wantonly insensible. Rape victims probably don’t see an “enigma” here.

Perhaps only someone who hasn’t been raped—or perhaps only a man who

hasn’t been raped—would see things that way.

But the question still needs to be asked. As we will see, in traditional rape

law, a morality of feminine virtue gave a simple, clear explanation of rape’s

status as a distinct and vile crime. Modern rape law, however, has ostensibly

repudiated that morality. The question is whether modern law can still treat

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. , ALA. CODE § 13A-6-61 (2012); ARK. CODE A NN. § 5-14-124 (2011); GA. CODE ANN. § 16-6-1 (2011); Sexual Offences Act, 2003, c. 42, § 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).

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rape as a distinct crime without relying on what it claims to repudiate.

Understanding rape law’s history is important for two reasons: first, to see

why modern rape law embraced sexual autonomy in place of the old rejected

sex morality; and second, to see how this morality remains covertly operative

today—in the law of rape-by-deception.

2. Rape as a Crime of Defilement—Female Defilement

Why then, for traditional judges, was rape so vile and so different from

other assaults? 71 The answer would have been simple: rape defiled women.

No injury to a woman short of death, and perhaps not even death, was

worse than rape: “An injury to her person more violent than the rape of a

young girl—her defloration and ruin—is impossible.”^72 “There is no form of

violence more odious either in law or in morals than rape.” 73 In the torrid

words of one supreme court:

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

To rape was to “shame and dishonour” a woman. 75 Or in the sympathetic

phrase of a seventeenth-century digest compiled for the governance of the New

World, to rape a woman was to “make a whore” of her. 76

This worldview was distinctly not gender neutral. It was women and

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 J OEL P RENTISS BISHOP , COMMENTARIES ON THE CRIMINAL LAW § 411, at 447 (Boston, Little Brown & Co., 2d ed. 1858).

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

75. 2 H ECTOR DAVIES M ORGAN , THE D OCTRINE AND L AW OF MARRIAGE, ADULTERY , AND D IVORCE 351 (Oxford, W. Baxter 1826).

76. J OHN COTTON , A N ABSTRACT OF THE LAWES OF N EW E NGLAND , AS THEY ARE N OW E STABLISHED 14-15 (1641).

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

girls whom sex destroyed, leaving them a blasted ruin. 77 For men, on the other

hand, sex was hardly an injury worse than death; even men who criminally

seduced unmarried girls were merely “rakes,” “rascals,” and “knaves”—not

“ruins.” 78 On the whole, sex buttressed manhood, whereas it destroyed

maidenhood and defiled femininity.

Traditional rape law’s picture of female purity is too well known^79 to

require much spelling out. Yet the connection between the old morality and

some of rape law’s basic doctrines has been surprisingly underappreciated.

Consider the infamous marital rape exception. 80

Today, the marital exemption is almost invariably explained on one of

three grounds. Most often, it is said to have rested on the notion that a wife

permanently consented to sex with her husband—an explanation offered by

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 B ISHOP , supra note 30, §§ 638-640, at 462-65; see also, e.g. , People ex rel. Scharff v. Frost, 120 N.Y.S. 491, 491 (App. Div. 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. & S OC. P OL ’ 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 G EO. W ASH. 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 J OEL P RENTISS B ISHOP , N EW COMMENTARIES ON THE CRIMINAL LAW § 1119(2) (Chicago, T.H. Flood & Co. 8th ed. 1892); 1 W HARTON , supra note 8, § 553, at 514 (10th ed. 1896).

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Hale and repeated many times thereafter, 81 although judges and scholars have

long noticed that Hale seems to have made up the rationale out of whole

cloth. 82 The two other theories are that the common law viewed a wife as the

husband’s “property” or the marital couple as “one person.” 83

All three accounts overlook a far simpler explanation: marital sex did not

defile a woman. Whether a wife consented to sex, wanted it, hated it, or was

forced to submit to it, she wasn’t defiled by it. Thus a law protecting women

from sexual defilement had nothing to do with the plight of women sexually

assaulted by their husbands.

When we today look back uncomprehendingly on the marital rape

exemption, we tend to forget the marital fornication exemption, the marital

seduction exemption, the marital prostitution exemption, and so on; there was a

marital exception to almost all traditional criminal sex law. 84 Matrimony alone

sacralized a woman’s defloration, moralized erotic desire, and legitimized its

issue. So long as rape was understood as a crime of female defilement, the

crime was impossible between a husband and wife.

The one exception proved the rule: a man could be convicted of raping his

wife if he helped another man force sex on her. 85 For in that case, the wife was

subjected to an act “despoiling of [her] virtue.” 86 Actually, a second exception

re-proved the rule. If a husband forced unnatural sex on his wife, an “infamous

81. 1 M ATTHEW HALE, THE H ISTORY OF THE P LEAS OF THE CROWN *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); E STRICH , supra note 17, at 72-73; ALAN W ERTHEIMER , CONSENT TO S EXUAL RELATIONS 12 (2003).

82. People v. Liberta, 474 N.E.2d 567, 572 (N.Y. 1984); JAMES FITZJAMES S TEPHEN , A D IGEST 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; E STRICH , 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 W HARTON , supra note 8, § 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. S TAT. § 18-7-201(1) (2011).

85. 2 B ISHOP , supra note 80, § 1119(2), at 645; e.g. , Commonwealth v. Fogerty, 74 Mass. ( 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 H ALE, supra note 81, at *629)).

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

indignity,” 87 he could also be convicted—not of rape, but of sodomy (evidently

she ceased to be his property, and they ceased to be one person, if he did

that ). 88

Rape as a crime against female virtue explains other definitive features of

traditional doctrine as well—for example, the staggering legal fact that men

could not be raped. 89 Rape was ruin, and sex did not ruin men. 90 The “utmost

resistance requirement” 91 also fit comfortably with the traditional view, as a test

of whether women displayed the virtue that rape law existed to protect. 92

Similarly, traditional rape law was notoriously hostile to claims by “fallen”

women.^93 Officially, the victim’s past unchastity was irrelevant. 94 But a

woman’s past sexual derelictions could still be put before the jury to show

consent. 95 Modern critics excoriate this doctrine, arguing that it allowed rapists

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. Pl. 1925); R v. Jellyman, (1839) 173 Eng. Rep. 637 (Patteson, J.).

89. E.g. , 2 BISHOP , supra note 80, § 1115(2), at 643 (“Rape is a man’s ravishment of a woman... .”); 4 W ILLIAM 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 & H IST. 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 E STRICH , supra note 17, at 29-41; and S CHULHOFER , 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 B ISHOP , supra note 80, § 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 B ISHOP , supra note 80, § 1119(1), at 645. Wigmore maintained that a young woman’s unchastity was also admissible to prove lack of credibility and even psychological instability.

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to be acquitted because their victims were sexually active. 96 This criticism is

completely justified, but what it criticizes was the doctrine’s very point: tacitly,

if not explicitly, (male) juries understood that rape was a crime of

defilement—and how could sex defile a woman who had no virtue to defile?

3. The Turn to Sexual Autonomy

In the last several decades, rape law has undergone radical change. The

marital rape exemption is history. 97 The rape of men and boys was finally

recognized. 98 The utmost resistance requirement has been abolished. 99 New

statutes exclude evidence of a rape claimant’s past sexual conduct. 100

These reforms, however, have created a conceptual gap. Rape law has

officially repudiated the feminine-virtue premises of the traditional era. But

how then does it explain why sexual assault is different from other assaults? If

not defilement, what is the special violation that rape inflicts?

One possible answer: there is none. On this view, the idea of rape as a

unique, outrageous violation is merely a noxious residue of old, invidious

sexual moralities. Later I’ll return to this possibility. 101 For now, we are asking

how modern rape law explains itself—how rape’s existence as an independent

crime, graver than almost any other assault, is explained today, now that the

older feminine-purity premises are no longer available.

Enter sexual autonomy. The earliest judicial statement that rape violates a

J OHN H ENRY WIGMORE, A TREATISE ON THE SYSTEM OF E VIDENCE IN TRIALS AT COMMON

L AW § 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. , E STRICH , supra note 17, at 49; S CHULHOFER, supra note 17, at 25.

97. See Emily J. Sack, Is Domestic Violence a Crime?: Intimate Partner Rape as Allegory , 24 S T. J OHN ’S J. L EGAL 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. S T. 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, 178-79 (2004).

100. Richard Klein, An Analysis of Thirty-Five Years of Rape Reform: A Frustrating Search for Fundamental Fairness , 41 A KRON L. REV. 981, 990-91 (2008) (discussing the passage of rape shield laws in every state and by Congress).

101. See infra Section V.C.

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

woman’s sexual “autonomy” was probably the Supreme Court’s 1977 Coker

decision—in which the Court also held that rape was not sufficiently heinous to

merit capital punishment:

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

This frequently quoted 103 passage offered a new explanation of the

distinctive violation effected by rape. Rape may not violate a woman’s purity,

but it does violate her “autonomy”—and specifically her sexual autonomy, her

“privilege of choosing those with whom intimate relationships are to be

established.” 104

Subsequent cases would reaffirm this idea, 105 explaining that sexual choices

are among an individual’s most private and intimate. As the Supreme Court of

New Jersey put it in the well-known M.T.S. case:

The decision to engage in sexual relations with another person is one of the most private and intimate decisions a person can make. Each person has the right not only to decide whether to engage in sexual contact with another, but also to control the circumstances and character of that contact. 106

With this language, the right of sexual autonomy is fully articulated, and

rape becomes expressly understood as unconsented-to sex: “We conclude,

therefore, that any act of sexual penetration engaged in by the defendant

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

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without the affirmative and freely-given permission of the victim to the specific

act... constitutes the offense... .” 107

Autonomy is the dominant concept in today’s leading rape scholarship. To

Patricia Falk, the “central value protected by sexual offense provisions is sexual

autonomy... , the violation of which represents a unique, not readily

comparable, type of harm to the victim.” 108 Stephen Schulhofer has argued

extensively in favor of “sexual autonomy” and the “right to sexual

self-determination.” 109 Philosopher Joan McGregor concludes that the “moral

wrongness of rape consists in violating an individual’s... sexual

self-determination and the seriousness of rape derives from the special

importance we attach to sexual autonomy.” 110 The citations could be

multiplied. 111

Outside the United States, the sexual-autonomy view of rape is also

widespread. Germany’s criminal code classifies sexual offenses as crimes

“against sexual self-determination.”^112 British scholars have invoked sexual

autonomy to interpret England’s recently reformed rape statutes. 113 In the

words of one international court, the “true common denominator” of all rape

may be the “violation[] of sexual autonomy .”^114

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. S CHULHOFER, 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. CHI. L. REV. 591, 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. S TRAFGESETZBUCH [S T GB] [P ENAL CODE], Nov. 13, 1998, B UNDESEGESETZBLATT I [BGB L. I], at §§ 174-184 (Ger.).

113. See, e.g. , Jonathan Herring, Mistaken Sex , 2005 C RIM. 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-96-23/1-T, Judgment, ¶ 440 (Int’l Crim. Trib. for the Former Yugoslavia Feb. 22, 2001).

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

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

In 1962, when the American Law Institute omitted fornication and adultery

from the proposed Model Penal Code, an explanatory note declared that

“private immorality should be beyond the reach of the penal law.” 115 Three

years later, Griswold announced the right to privacy. Together,

decriminalization and constitutionalization arguably produced a new, modern

fundamental right: the right to sexual autonomy. Today this same right has

entered into rape law, which found itself in need of a new structuring principle

shorn of the sexism and defilement ideology of the traditional era.

Sexual autonomy has two sides. First, consenting adults have a right to

engage in sex of whatever variety in the privacy of their bedrooms. That’s the

point of Lawrence and decriminalization. Second, if an individual doesn’t want

sex of whatever variety—whether with a certain person, or with persons

possessing a certain trait, or in certain circumstances, or at all—he or she has a

right not to have it. That’s the point of modern sex codes and rape law.

Thus would American sex law today appear to be animated by a single

principle. Every individual has the right to decide what kind of sex to have,

with what sorts of people, and in what circumstances.

ii. the riddle of rape-by-deception

Or so at least the story might go. But this picture of American sex law can’t

account for a peculiar and thorny anomaly: sex-by-deception.

A. The General Rule and Its Two Exceptions

The subject was already perplexing over a century ago. Ordinarily, as an

important treatise observed, “if... the consent is obtained by fraud... the law

deems there was no consent.” 116 But in the “peculiar” case of rape, the rule was

otherwise: “Still the majority of English judges have held, that the peculiar

offense of rape is not committed where a fraudulent consent is obtained... .” 117

115. M ODEL P ENAL CODE § 213.6 note on adultery and fornication, at 439 (Proposed Official Draft 1962).

116. 1 B ISHOP , supra note 73, § 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.)

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To rationalize this result, common law judges were obliged to reject one of

two venerable propositions: (1) that fraud vitiated consent; or (2) that rape was

sex without consent. Some chose the first option:

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

Most judges, however, were unprepared to deny that fraud vitiates consent.

Fortunately for them, a different definition of rape was available, supported by

many authorities, according to which rape required force. 119 Especially in

America, where the force requirement was often laid down by statute,

nineteenth-century courts had a clear basis for rejecting rape-by-deception:

“Rape is the carnal knowledge of any female... ‘by force and against her

will,’” and “fraud is not force.” 120 American courts have adhered to this

reasoning ever since. 121

(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 re- consideration.”).

118. R v. Clarence, (1888) 22 Q.B.D. 23 at 43 (Stephen, J.) (Eng.).

119. See, e.g. , 2 B ISHOP , supra note 80, §§ 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 B LACKSTONE, 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. 188 (Cir. Ct. 1995) (same).