Prologue
While the version of this Article published in the Yale Law Journal explains the history of American sex law, grapples with traditional justifications for excluding rape-by-deception from rape law, and maps the main options available to rape law once its difficulties are exposed, this Article jumps right to the heart of the argument. It explains why the popular coercion-based compromise?in which coercive sex would be rape, but deceptive sex would not be?cannot solve the riddle of rape by deception. It opposes the principle of sexual autonomy and suggests that there is and should be no fundamental right to sexual autonomy. Finally, it shows that rape is better conceived as a violation of a right akin to slavery and torture?crimes which violate a person?s fundamental right to self-possession?than to a violation of individual autonomy. This argument solves the riddle of rape-by-deception but at a cost. It means the much-maligned ?force requirement??the fundamental equation of rape with force?is actually a constitutive element of the crime.
Introduction
We might say that sex law in this country is converging on a single unifying principle: the right to sexual autonomy. The idea behind sexual autonomy is simple. People have a right to decide for themselves with whom and under what circumstances to have sex. The legal fight for this principle has been waged on several fronts, including the constitutionalization of rights to contraception (in a 1972 Supreme Court case called Eisendstadt) and private, consensual homosexual sex (in a 2003 Supreme Court case called Lawrence), and the implementation of sex codes that aim to ensure that sexual activities are consensual.
But there is an anomaly in the system: rape-by-deception. In American criminal law there is no crime of ?rape-by-deception.? With only two narrow exceptions one cannot commit rape by deceiving someone into sex.
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 Lawrence recently explained, a constitutional right.
The purpose of this Article is to demonstrate that the problem of sex-by-deception requires a rethinking of what rape really is. It also requires sex law to pick its poison?to decide if it does or doesn?t stand for sexual autonomy, whether that means embracing rape-by-deception or reconsidering Lawrence. Finally, it requires a reevaluation of the ideal of autonomy itself, at least as applied to sexuality. This Article argues that conceiving of rape as a violation of sexual autonomy is the wrong way to think about rape, and therefore that rape should not be understood merely as unconsented-to sex. Rape is better understood as comparable to slavery and torture, which are violations of a person?s fundamental right to self-possession.
This view of rape explains the rejection of rape-by-deception in American criminal law. However, it also suggests that the traditional requirement in American criminal law?that rape requires force?must be a defining element of the crime, if rape violates self-possession rather than autonomy.
Rejecting the Coercion Compromise
A person who enters your house pretending to be a meter reader commits trespass (entry onto real property without consent); a Ponzi-scheme swindler commits larceny or theft (taking property without consent) ?by deception?; a man posing as a doctor who ?lays his hands on [a woman?s] person? commits battery (offensive touching without consent). ?Fraud,? as Judge Learned Hand put it, ?will vitiate consent as well as violence.? Why, then, isn?t sex-by-deception rape?
The answer, for American courts, is that rape requires more than nonconsent; it requires force, and deception isn?t force. But this answer hardly answers, not without an explanation of why rape requires force?an explanation that has never been forthcoming.
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 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.
Perhaps the solution lies in compromise. Perhaps rape law could replace the force requirement with a coercion requirement. A coercion requirement would cure the worst problems of the force requirement and effect a partial reconciliation between rape law and sexual autonomy. For these reasons, many readers may find this solution appealing. ?A coercion requirement would bring rape law closer to the ideal of sexual autonomy. But deception is not coercion. So a coercion-based rape law would still exclude most cases of sexual deception.
The problem with this compromise is that it dissolves on contact with reflection. The coercion requirement?s exclusion of rape-by-deception is contradicted by its own internal logic. Coercion is objectionable because a coerced ?yes? does not reflect a valid or genuine consent. But the same is true of a deceived ?yes.? An anti-coercion principle is attractive because coerced sex is unconsented-to sex. But if unconsented-to sex is rape law?s target, then deceptive sex ought to be punished as well. By excluding sexual deception, the coercion compromise conflicts with sexual autonomy. It can exclude rape-by-deception only by contradicting its own logic.
Sexual Autonomy?s Unattainability and Undesirability
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.
Autonomy is a big and loaded concept, with multiple possible meanings across a variety of contexts. For many, sexual autonomy means sexual ?self-determination?: the ?fundamental right? to define and express one?s ?sexual identity.? 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. But 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.
And 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? 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.
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 self?s 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?.
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 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 self?s 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 ?I? 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. Individual autonomy is the last thing sexuality wants. From autonomy?s point of view, sexuality is undesirable. From sexuality?s, autonomy is.
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. 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. 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.
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.
Reconceiving Rape as a Violation of Self-Possession
The key concept for rape law 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, 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.
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, and 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, and not every act of rape literally involves torture, but the similarities are unmistakable.
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.
Suppose, then, that we thought of rape as a violation of self-possession, on a par with slavery and torture. Such a reconceptualization would 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 of 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.
Conclusion
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.
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 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.
Acknowledgments:
Copyright ? 2013 The Yale Law Journal Company, Inc.
This Legal Workshop article is based on Jed Rubenfeld, The Riddle of Rape-by-Deception and the Myth of Sexual Autonomy, 122 YALE L.J. (forthcoming 2013). Adaptation prepared by Andrew Tutt.
Source: http://legalworkshop.org/2013/03/01/the-riddle-of-rape-by-deception-and-the-myth-of-sexual-autonomy
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