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

Yale Law Journal

Volumn 122, Issue 6, 2013, Pages 1372-1443

  Rubenfeld, Jed ^a  

^a YALE UNIVERSITY   (United States)

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EID: 84876387624     PISSN: 00440094     EISSN: None     Source Type: Journal    
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References (372)

1. Crim C (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?, HAARETZ, 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).
2. Joanna Paraszczuk, Court Cuts Arab-Israeli Rape-by-Deception Sentence, JERUSALEM POST, Jan. 27, 2012, http://www.jpost.com/NationalNews/Article.aspx?id=255363.
3. H.R. 1494, 186th Gen. Court (Mass. 2009), http://www.malegislature.gov/Bills/186/House/H1494 (emphasis added).
4. TENN. CODE ANN. § 39-13-503(a)(4) (2010).
5. IDAHO CODE ANN. § 18-6101(8) (Supp. 2011). Interestingly, if a man is so deceived, it isn't rape.
6. R. v. Cuerrier, [1998] 2 S.C.R. 371, 374 (Can.) (opinion of L'Heureux-Dubé, J.).
7. Ryan McCartney, Could a Pick-Up Artist Be Charged with 'Rape by Deception'?, NBC NEWS, 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).
8. Noting the "visceral reaction [of] many in the United States" against the Kashour ruling.
9. Infra Section II.A.
10. B.K. Carpenter, Annotation, Rape by Fraud or Impersonation, 91 A.L.R.2d 591, § 2 (1963).
11. "[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.").
12. 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 § 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....").
13. COLO. REV. STAT. § 18-3-402 (2004) (defining "Sexual assault"); MONT. 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.).
14. 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.").
15. Carolyn Logan, COUNTERBALANCE: GENDERED PERSPECTIVES FOR WRITING AND LANGUAGE 72 (1997).
16. "In public discourse, rape has become 'unconsented sexual activity.'".
17. 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).
18. "Rape should be conceptualized as unconsented-to sexual intercourse....".
19. 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).
20. "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.5 (D.C. 1988) ("To be valid, consent must be informed and not the product of trickery, fraud, or misrepresentation.").
21. 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.").
22. Rollin M. Perkins, PERKINS ON CRIMINAL LAW 245-248 (2d ed. 1969).
23. 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.
24. Wayne R. Lafave & Austin W. Scott, Jr., SUBSTANTIVE CRIMINAL LAW § 8.7, at 396 (1986).
25. RESTATEMENT (SECOND) 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 WHARTON'S CRIMINAL LAW § 835 (12th ed. 1932) (discussing assault and battery) ("[I]n any view, consent obtained through fraud... is no defense.").
26. NLRB v. Dadourian Exp. Corp., 138 F.2d 891, 892 (2d Cir. 1943).
27. Suliveres v. Commonwealth, 865 N.E.2d 1086, 1087 (Mass. 2007).
28. Susan Estrich, REAL RAPE 69 (1987).
29. "[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....".
30. Stephen J. Schulhofer, UNWANTED SEX: THE CULTURE OF INTIMIDATION AND THE FAILURE OF LAW 15 (1998)
31. 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".
32. David P. Bryden, Redefining Rape, 3 BUFF. CRIM. L. REV. 317, 322 (2000).
33. Supra note 9.
34. 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.
35. Reporting that the FBI has, after ninety years, eliminated the force requirement from its definition of rape in favor of a consent-based formulation.
36. 381 U.S. 479 (1965) (striking down a law banning the use of contraception).
37. 539 U.S. 558 (2003) (striking down a law criminalizing homosexual sex).
38. Infra Section I.A.
39. Infra Section I.B.
40. Infra Section I.C.
41. Infra Subsection I.D.3.
42. Infra notes 102-114 and accompanying text.
43. Infra Part II and notes 148 and 152.
44. Infra Section III.A.
45. People v. Barnes, 9 P. 532, 534-35 (Idaho 1886) (holding consent irrelevant for a conviction of fornication).
46. Joel Prentiss Bishop, COMMENTARIES ON THE LAW OF STATUTORY CRIMES § 656, at 474-475 (3d ed. 1901).
47. Chester G. Vernier, AMERICAN FAMILY LAWS 288 (1931).
48. 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.".
49. Gilbert Thomas Stephenson, RACE DISTINCTIONS IN AMERICAN LAW 78-81 (1910).
50. Or "buggery," or the "crime against nature." See, e.g., State v. Long, 63 So. 180, 180 (La. 1913).
51. 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.".
52. Francis Wharton, A TREATISE ON CRIMINAL LAW § 754 (11th ed. 1912).
53. William N. Eskridge Jr., DISHONORABLE PASSIONS: SODOMY LAWS IN AMERICA 1861-2003, at 69+92 (2008).
54. Describing the express criminalization of lesbian sex beginning in the 1920s.
55. 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).
56. Janet Farrell Brodie, CONTRACEPTION AND ABORTION IN NINETEENTH-CENTURY AMERICA 257 (1994).
57. 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).
58. 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).
59. Anne M. Coughlin, Sex and Guilt, 84 VA. L. REV. 1, 6 (1998).
60. "[I]t seems clear that the official purposes of [traditional] rape law... did not include the protection of sexual autonomy.".
61. Another part of this story is the constitutional protection given to sexually graphic expression, which has allowed pornography to become a multibillion-dollar industry.
62. John A. Humbach, 'Sexting' and the First Amendment, 37 HASTINGS CONST. L. n.45 (2010).
63. Griswold v. Connecticut, 381 U.S. 479, 485 (1965).
64. 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.
65. 405 U.S. 438 (1972).
66. Radhika Rao, Property, Privacy, and the Human Body, 80 B.U. L. REV. 359, 360 n.2 (2000).
67. "Many scholars suggest that the term 'privacy' itself is a misnomer....".
68. Richard A. Posner, SEX AND REASON 324 (1992).
69. 478 U.S. 186 (1986) (upholding a conviction for homosexual sodomy).
70. Lawrence v. Texas, 539 U.S. 558, 562 (2003).
71. David S. Bogen, Slaughter-House Five: Views of the Case, 55 HASTINGS L.J. 333, 334 n.4 (2003).
72. Reading Lawrence to support the proposition that "adults have [a] fundamental right to autonomy in intimate choices".
73. Erwin Chemerinsky, Implied Fundamental Rights, in 20 TH ANNUAL SECTION 1983 CIVIL RIGHTS LITIGATION 167, 171 (PLI Litig. & Admin. Practice, Course Handbook Ser. No. 700, 2003).
74. Describing Lawrence as vindicating a "right to engage in private consensual homosexual activity".
75. 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).
76. Asserting that Lawrence guarantees "a personal right of private sexual autonomy".
77. Hon. Diarmuid F. O'Scannlain, Speech, Rediscovering the Common Law, 79 NOTRE DAME L. REV. 755, 761 n.17 (2003).
78. Reading Lawrence as standing for a "right to sexual autonomy".
79. Robert C. Post, The Supreme Court, 2002 Term-Foreword: Fashioning the Legal Constitution: Culture, Courts, and Law, 117 HARV. L. REV. 4, 97 (2003)
80. "[T]he theme of autonomy floats weightlessly through Lawrence, invoked but never endowed with analytic traction.".
81. 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).
82. MODEL PENAL CODE § 213.6 note on status of section, at 434-36 (Proposed Official Draft 1962).
83. Richard Green, Fornication: Common Law Legacy and American Sexual Privacy, 17 ANGLO-AM. L. REV. 226, 226 (1988).
84. Gabrielle Viator, Note, The Validity of Criminal Adultery Prohibitions After Lawrence v. Texas, 39 SUFFOLK U. L. REV. 837, 842 (2006).
85. Over the last several decades, state prosecutions for fornication and adultery have not disappeared, although they have been rare.
86. Sara Sun Beale, The Many Faces of Overcriminalization: From Morals and Mattress Tags to Overfederalization, 54 AM. U. L. REV. 747, 756-757 (2005)
87. 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.
88. 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).
89. Jane E. Larson, "Women Understand So Little, They Call My Good Nature 'Deceit'": A Feminist Rethinking of Seduction, 93 COLUM. L. REV. 374, 394-398 (1993).
90. Discussing the movement, beginning in the 1930s, to abolish seduction statutes.
91. ESKRIDGE, supra note 34, at 176-78 ("For several years after Stonewall, sodomy decriminalization indeed proceeded rapidly in many states.").
92. Ernest Earnest, ACADEMIC PROCESSION: AN INFORMAL HISTORY OF THE AMERICAN COLLEGE, 1636 TO 1953, at 108 (1953).
93. 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.".
94. FIFTH ANNUAL CATALOGUE OF THE OFFICERS AND STUDENTS OF HILLSDALE COLLEGE 40 (1860).
95. Homosexual sex provoked, as usual, the harshest reprisals.
96. William Wright, HARVARD'S SECRET COURT: THE SAVAGE 1920 PURGE OF CAMPUS HOMOSEXUALS (2005).
97. Describing the secret tribunal used at Harvard in 1920 to investigate and punish homosexuality.
98. 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%202012-13.pdf.
99. Reflecting policies for the 2012 to 2013 academic year.
100. 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).
101. The Department of Education's 2011 "Dear Colleague" letter may have been a motivation.
102. Office for Civil Rights, Dear Colleague Letter from Assistant Secretary for Civil Rights Rosslyn Ali, U.S. DEP'T OF EDUC. (Apr. 4, 2011), http://www.ed.gov/about/offices/list/ocr/letters/colleague-201104.html (warning universities of potential Title IX violations).
103. 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").
104. 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).
105. ALA. CODE § 13A-6-61 (2012); ARK. CODE ANN. § 5-14-124 (2011); GA. CODE ANN. § 16-6-1 (2011); Sexual Offences Act, 2003, c. 42, § 1(4) (U.K.).
106. 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).
107. 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.
108. Callaghan v. State, 155 P. 308, 309 (Ariz. 1916).
109. Joel Prentiss Bishop, COMMENTARIES ON THE CRIMINAL LAW § 411, at 447 (Boston, Little Brown & Co., 2d ed. 1858).
110. Biggs v. State, 29 Ga. 723, 728-29 (1860).
111. Hector Davies Morgan, THE DOCTRINE AND LAW OF MARRIAGE, ADULTERY, AND DIVORCE 351 (Oxford, W. Baxter 1826).
112. John Cotton, AN ABSTRACT OF THE LAWES OF NEW ENGLAND, AS THEY ARE NOW ESTABLISHED 14-15 (1641). 77.
113. "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").
114. 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, §§ 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)).
115. 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).
116. "Throughout most of history, rape was considered a crime against the chastity of the victim....".
117. 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).
118. "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").
119. 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....").
120. Joel Prentiss Bishop, NEW COMMENTARIES ON THE CRIMINAL LAW § 1119(2) (Chicago, T.H. Flood & Co. 8th ed. 1892).
121. WHARTON, supra note 8, § 553, at 514 (10th ed. 1896).
122. Matthew Hale, THE HISTORY OF THE PLEAS OF THE CROWN *629 (Philadelphia, Robert H. Small ed., 1847).
123. 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.
124. Alan Wertheimer, CONSENT TO SEXUAL RELATIONS 12 (2003).
125. People v. Liberta, 474 N.E.2d 567, 572 (N.Y. 1984).
126. James Fitzjames Stephen, A DIGEST OF THE CRIMINAL LAW 186 & n.1 (London, MacMillan & Co. 1883).
127. 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.
128. 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, § 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. § 18-7-201(1) (2011).
129. BISHOP, supra note 80, § 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).
130. 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)).
131. Crutcher v. Crutcher, 38 So. 337, 337 (Miss. 1905).
132. 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.).
133. BISHOP, supra note 80, § 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)).
134. 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'....".
135. 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).
136. 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.
137. 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?").
138. BLACKSTONE, supra note 89, at *213 (asserting that European rape law excluded prostitutes).
139. BISHOP, 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.").
140. BISHOP, 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.
141. John Henry Wigmore, A TREATISE ON THE SYSTEM OF EVIDENCE IN TRIALS AT COMMON LAW § 924a (2d ed. supp. 1934).
142. 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.").
143. ESTRICH, supra note 17, at 49.
144. SCHULHOFER, supra note 17, at 25.
145. Emily J. Sack, Is Domestic Violence a Crime?: Intimate Partner Rape as Allegory, 24 ST. JOHN'S J. LEGAL COMMENT. 535, 554 (2010).
146. 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).
147. Siegmund Fred Fuchs, Note, Male Sexual Assault: Issues of Arousal and Consent, 51 CLEV. ST. L. REV. 93, 111 (2004).
148. "[A]ll but three jurisdictions in the United States have gender-neutral rape statutes.".
149. Katherine E. Volovski, Domestic Violence, 5 GEO. J. GENDER & L. 175, 178-179 (2004).
150. Richard Klein, An Analysis of Thirty-Five Years of Rape Reform: A Frustrating Search for Fundamental Fairness, 41 AKRON L. REV. 981, 990-991 (2008).
151. Discussing the passage of rape shield laws in every state and by Congress.
152. Infra Section V.C.
153. Coker v. Georgia, 433 U.S. 584, 597 (1977) (plurality opinion) (emphasis added).
154. 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).
155. Coker, 433 U.S. at 597.
156. 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)).
157. State ex rel. M.T.S., 609 A.2d 1266, 1278 (N.J. 1992).
158. Patricia J. Falk, Rape by Drugs: A Statutory Overview and Proposals for Reform, 44 ARIZ. L. REV. 131, 187 (2002).
159. SCHULHOFER, supra note 17, at 16-17.
160. McGregor, supra note 10, at 236.
161. Coughlin, supra note 39, at 2.
162. 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).
163. Defining "sexual autonomy" as "the freedom to refuse to have sex with any one for any reason".
164. Dan M. Kahan, What Do Alternative Sanctions Mean?, 63 U. CHI. L. REV. 591, 598 (1996).
165. "[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.
166. Dorothy E. Roberts, Rape, Violence, and Women's Autonomy, 69 CHI.-KENT L. REV. 359 (1993).
167. STRAFGESETZBUCH [STGB] [PENAL CODE], Nov. 13, 1998, BUNDESEGESETZBLATT I [BGBL. I], at §§ 174-184 (Ger.).
168. Jonathan Herring, Mistaken Sex, 2005 CRIM. L. REV. 511, 516.
169. Treating sexual autonomy as rape law's central principle.
170. Vanessa E. Munro, Constructing Consent: Legislating Freedom and Legitimating Constraint in the Expression of Sexual Autonomy, 41 AKRON L. REV. 923 (2008).
171. 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).
172. MODEL PENAL CODE § 213.6 note on adultery and fornication, at 439 (Proposed Official Draft 1962).
173. BISHOP, supra note 73, § 343, at 384.
174. 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.").
175. R v. Clarence, (1888) 22 Q.B.D. 23 at 43 (Stephen, J.) (Eng.).
176. BISHOP, 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 BLACKSTONE, supra note 89, at *210 (defining rape as "the carnal knowledge of a woman forcibly and against her will").
177. 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).
178. 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).
179. 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.).
180. Patricia J. Falk, Rape by Fraud and Rape by Coercion, 64 BROOK. L. REV. 39, 119 (1998)
181. Observing "the two archetypical rape by fraud cases, fraudulent medical treatment and husband impersonation".
182. 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, § 76(2)(b) (U.K.).
183. 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, § 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, §§ 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.).
184. 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. 1986). 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. COMP. LAWS § 750.90 (2004) (making such conduct a felony punishable by up to ten years in prison).
185. 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.164-165 (2007).
186. CAL. PENAL CODE § 261(a)(5) (West 2008).
187. MODEL PENAL CODE § 213.1(2)(c) (Official Draft and Explanatory Notes 1985).
188. States v. Hughes, 48 M.J. 214, 216 (C.A.A.F. 1998); Boro, 210 Cal. Rptr. At 125.
189. Joshua Dressler, UNDERSTANDING CRIMINAL LAW 143 (3d ed. 2001).
190. Wayne R. Lafave, CRIMINAL LAW 767 (3d ed. 2000).
191. Rollin M. Perkins & Ronald N. Boyce, CRIMINAL LAW 215 (3d ed. 1982).
192. Christopher & Christopher, supra note 128, at 83-84.
193. Boro, 210 Cal. Rptr. at 123.
194. PERKINS & BOYCE, supra note 131, at 1079-1081.
195. Christopher & Christopher, supra note 128, at 83.
196. 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.").
197. PERKINS & BOYCE, supra note 131, at 1079.
198. Christopher & Christopher, supra note 128, at 83.
199. Glenda K. Harnad et al., Criminal Law: Crimes Against Property, 18 A CAL. JUR. 3D § 137 (2012).
200. Citing numerous cases of larceny achieved through fraudulent inducement.
201. 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, (1779) 168 Eng. Rep. 208 (K.B.).
202. State v. Maxwell, 672 P.2d 590, 594 (Kan. 1993) (finding entry trespassory where defendants feigned interest in selling a watch); State v. Ortiz, 584 P.2d 1306, 1308 (N.M. Ct. App. 1978) (finding entry trespassory where defendants claimed to have come to a house to help the owner's daughter).
203. Jay M. Zitter, Use of Fraud or Trick as "Constructive Breaking" for Purpose of Burglary or Breaking and Entering Offense, 17 A.L.R.5TH 125 § 3a (1994).
204. Citing numerous similar cases.
205. It is hornbook contract law that a person "fraudulently induced to enter into a contract has not assented to the agreement.".
206. Samuel Williston & Richard A. Lord, A TREATISE ON THE LAW OF CONTRACTS § 69.1 (4th ed. 2003).
207. 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).
208. RESTATEMENT (SECOND) OF TORTS § 173 cmt. b, illus. 1 (1965).
209. 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 § 173 cmt. b, illus. 2 (1965).
210. PERKINS & BOYCE, supra note 131, at 216.
211. Asserting that impersonation-of-paramour is fraud in the inducement.
212. Peter Westen, THE LOGIC OF CONSENT: THE DIVERSITY AND DECEPTIVENESS OF CONSENT AS A DEFENSE TO CRIMINAL CONDUCT 198-199 (2004).
213. 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.
214. 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.
215. Hyman Gross, Rape, Moralism, and Human Rights, 2007 CRIM. L. REV. 220, 224.
216. "Separating innocuous falsehoods from pernicious deceptions would present insurmountable difficulties in a court of law....".
217. 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.
218. 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.
219. 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).
220. Boro v. Superior Court, 210 Cal. Rptr. 122, 124-25 (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] ("[S]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?").
221. Boro, 210 Cal. Rptr. at 124.
222. PERKINS & BOYCE, supra note 131, at 215.
223. 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).
224. "[L]ying is wrong because it violates human autonomy. Lying forces the victim to pursue the speaker's objectives instead of the victim's....".
225. David A. Strauss, Persuasion, Autonomy, and Freedom of Expression, 91 COLUM. L. REV. 334, 355 (1991).
226. Joel Feinberg, THE MORAL LIMITS OF THE CRIMINAL LAW: HARM TO OTHERS 116 (1984).
227. "[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....".
228. Joseph Raz, THE MORALITY OF FREEDOM 378 (1986).
229. "Coercion and manipulation subject the will of one person to that of another. That violates his independence and is inconsistent with his autonomy.").
230. 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).
231. 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.".
232. 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 is satisfied by the act of intercourse itself. State ex rel. 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).
233. Gross, supra note 141, at 224. This argument tracks traditional rape law. See, e.g., 2 BISHOP, supra note 80, § 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.
234. Strauss, supra note 148, at 355, and the other sources cited supra note 148.
235. Robert Nozick, ANARCHY, STATE, AND UTOPIA, at 9 (1974).
236. Ayn Rand, The Nature of Government, in THE VIRTUE OF SELFISHNESS 144, 150-151 (1964).
237. "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.".
238. 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").
239. SCHULHOFER, supra note 17, at 156.
240. Robin West, NARRATIVE, AUTHORITY, AND LAW 218, 223 (1993).
241. 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".
242. Gross, supra note 141, at 224.
243. I thank Gideon Yaffe for bringing this objection to my attention.
244. 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).
245. J.H. Desnick, M.D., Eye Servs., Ltd. v. ABC, Inc., 44 F.3d 1345, 1352 (7th Cir. 1995).
246. 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.").
247. 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.
248. CrimA 2358/06 Selimann v. State of Israel (Sept. 17, 2008), Nevo Legal Database (by subscription); see also R. v. Cuerrier, [1998] 2 S.C.R. 371, 374 (Can.) (opinion of L'Heureux- Dubé, 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").
249. 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.
250. Supra note 54 (citing authors who have read Lawrence as standing for a right of sexual autonomy).
251. 410 U.S. 113 (1973).
252. Commonwealth v. Mlinarich, 542 A.2d 1335, 1337 (Pa. 1988).
253. 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.
254. State v. Thompson, 792 P.2d 1103 (Mont. 1990) (acquitting the defendant of rape).
255. 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)).
256. Wheeler v. Comm'r, 528 F.3d 773, 779 (10th Cir. 2008).
257. Richard A. Lord, WILLISTON ON CONTRACTS § 71:11 (4th ed. 2003).
258. 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)).
259. For the view that rape law should be understood as increasing the efficiency of sexual transactions.
260. Richard A. Posner, An Economic Theory of the Criminal Law, 85 COLUM. L. REV. 1193, 1199 (1985).
261. "[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.".
262. Catherine L. Carpenter, On Statutory Rape, Strict Liability, and the Public Welfare Offense Model, 53 AM. U. L. REV. 313, 352 (2003).
263. Discussing the rule that a "mistake-of age" is no defense.
264. Armer v. State, 773 P.2d 757, 758-59 (Okla. Crim. App. 1989); State v. Pentland, 719 P.2d 605, 606 (Wash. Ct. App. 1986); see also, e.g., VA. CODE ANN. § 16.1-269.1 (2010) (providing for prosecution as adults of persons fourteen years of age or older charged with rape).
265. Christopher & Christopher, supra note 128, at 79 (arguing that sex by "adult impersonation... constitutes rape by fraud").
266. 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.2d 670, 673 (Md. Ct. Spec. App. 1975).
267. 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.2d 888, 892-93 (Tex. Crim. App. 1975) (en banc).
268. 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.
269. 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_4b04f85a-21a5-54b5-a3a0-798aa0b8f2bf.html.
270. In Alabama, "sexual misconduct," a misdemeanor, includes sex by "fraud or artifice." ALA. CODE § 13A-6-65(a)(1) (LexisNexis 2012); see also VA. CODE ANN. § 18.2-67.4(A)(i) (2004) (defining "sexual battery," a misdemeanor, to include sexual touchings obtained by "ruse").
271. 17 C.F.R. § 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").
272. N.J. STAT. ANN. § 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 § 120291(a) (West 2012) (similar). But note that this is already assault or battery. See infra note 227.
273. Coker v. Georgia, 433 U.S. 584, 597 (1977).
274. State ex rel. M.T.S., 609 A.2d 1266, 1278 (N.J. 1992).
275. SCHULHOFER, supra note 17, at 16-17.
276. McGregor, supra note 10, at 236.
277. Robert Uerpmann-Wittzack, Personal Rights and the Prohibition of Discrimination, in EUROPEAN FUNDAMENTAL RIGHTS AND FREEDOMS 67, 70 (Dirk Ehlers ed., 2007).
278. 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).
279. Note, The Supreme Court, 1985 Term-Leading Cases, 100 HARV. L. REV. 100, 219 (1986).
280. Referring to the "current societal trend of recognizing that individuals have a fundamental right to define their own sexual identities".
281. Immanuel Kant, GROUNDWORK OF THE METAPHYSIC OF MORALS 56-57 (H.J. Patton trans., Harper & Rowe 1964) (1785).
282. Immanuel Kant, LECTURES ON ETHICS 163 (Paul Mentzer ed., Louis Infield trans., 1963).
283. Immanuel Kant, THE METAPHYSICS OF MORALS 62 (Mary Gregor ed. & trans., Cambridge Univ. Press 1996) (1797).
284. David A.J. Richards, SEX, DRUGS, DEATH, AND THE LAW: AN ESSAY ON HUMAN RIGHTS AND OVERCRIMINALIZATION 54 (1982).
285. 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).
286. "At the height of being in love, the boundary between ego and object threatens to melt away.".
287. For Hegel, at least as Kojève famously read him, desire always desires the other's desire.
288. Alexandre Kojève, INTRODUCTION TO THE READING OF HEGEL 6 (Allan Bloom ed., James H. Nichols trans., 1980).
289. "[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.".
290. Jacques Lacan, THE SEMINAR OF JACQUES LACAN: THE FOUR FUNDAMENTAL CONCEPTS OF PSYCHOANALYSIS 235 (Jacques-Alain Miller ed., Alan Sheridan trans., 1981).
291. "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.
292. G.W.F. HEGEL, PHENOMENOLOGY OF SPIRIT §§ 175-176, at 110 (A.V. Miller trans., Oxford Univ. Press 1977) (1807).
293. "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 selfdetermination.
294. Ripstein has been particularly attentive to these difficulties.
295. Arthur Ripstein, FORCE AND FREEDOM: KANT'S LEGAL AND POLITICAL PHILOSOPHY 15 (2009).
296. 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.
297. 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.
298. Supra notes 58 and 78.
299. While forced prostitution and crimes against prostitutes are sickeningly common.
300. Margaret A. Baldwin, Split at the Root: Prostitution and Feminist Discourses of Law Reform, 5 YALE J.L. & FEMINISM 47, 87 (1992).
301. Describing prostitutes as "rapable, beatable, 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).
302. Gowri Ramachandran, Against the Right to Bodily Integrity: Of Cyborgs and Human Rights, 87 DENV. U. L. REV. 1, 53 (2009).
303. "[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.".
304. John Gardner & S. Shute, The Wrongness of Rape, in OXFORD ESSAYS IN JURISPRUDENCE, FOURTH SERIES 193 (J. Horder ed., 2000).
305. For an interesting treatment connecting self-possession and dignity.
306. George Kateb, HUMAN DIGNITY 164-169 (2011).
307. Waldron has also made this connection.
308. Jeremy Waldron, Dignity, Rights and Responsibilities, 43 ARIZ. ST. L.J. 1107, 1126-1127 (2012).
309. Self-possession-and especially a woman's right to it-has occasionally been cited as an important interest protected by rape law.
310. Jill Elaine Hasday, Contest and Consent: A Legal History of Marital Rape, 88 CALIF. L. REV. 1373, 1413-1414+1421-1422 (2000).
311. 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").
312. Jane Kim, Taking Rape Seriously: Rape as Slavery, 35 HARV. J.L. & GENDER 263 (2012).
313. Arguing that all rape should be considered a form of slavery.
314. Needless to say, many rapes do involve torture.
315. 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.
316. Describing the ordeal of a Columbia University graduate student whose lips were glued together and body burned during her extended rape.
317. 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.
318. Anthony Ramirez, Firsthand Experience of Rape, and Resiliency, N.Y. TIMES, Dec. 28, 2007, http://www.nytimes.com/2007/12/28/nyregion/28lives.html.
319. 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.
320. Ramirez, supra note 209.
321. ESTRICH, supra note 17, at 1-15.
322. Janet Halley, SPLIT DECISIONS: HOW AND WHY TO TAKE A BREAK FROM FEMINISM 345 (2006).
323. Asking whether "the politics of injury and of traumatized sensibility" might be "helping to authorize and enable women as sufferers".
324. 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.
325. Les Sussman & Sally Bordwell, THE RAPIST FILE: INTERVIEWS WITH CONVICTED RAPISTS 32-33 (2000).
326. 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.").
327. Coker v. Georgia, 433 U.S. 584, 597 (1977).
328. 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).
329. Jed Rubenfeld, FREEDOM AND TIME: A THEORY OF CONSTITUTIONAL SELFGOVERNMENT 223-227, 248-253 (2001).
330. Laurence H. Tribe, CONSTITUTIONAL CHOICES 243 (1985).
331. Describing the prohibition of abortion as "conscript[ing] women... as involuntary incubators".
332. RUBENFELD, supra note 217, at 221-255.
333. Lawrence v. Texas, 539 U.S. 558, 577 (2003) (quoting approvingly Bowers v. Hardwick, 478 U.S. 186, 216 (1986) (Stevens, J., dissenting)).
334. Lawrence, 539 U.S. at 579-85 (O'Connor, J., concurring) (concurring on equal protection grounds). To be sure, anti homosexuality 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.
335. If consensual sex were genuinely constitutionally protected on autonomy grounds, engaging in it for profit should not be prohibitable-just as for-profit religious 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.
336. 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 562, 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).
337. 18 U.S.C. § 2340(1) (2006).
338. 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.
339. David Luban & Henry Shue, Mental Torture: A Critique of Erasures in U.S. Law, 100 GEO. L.J. 823, 836-837 (2012).
340. 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); R. v. Cuerrier, [1998] 2 S.C.R. 371 (Can.) (reaching a similar conclusion to that reached in Leleux).
341. 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).
342. 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).
343. Commonwealth v. Mlinarich, 542 A.2d 1335 (Pa. 1988).
344. 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).
345. 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.
346. Charles Viner, A GENERAL ABRIDGMENT OF LAW AND EQUITY 153 (London, G.G.J. et al. eds., 2d ed. 1793).
347. "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).
348. Joan Mcgregor, IS IT RAPE?: ON ACQUAINTANCE RAPE AND TAKING WOMEN'S CONSENT SERIOUSLY 117 (2005).
349. "There are two major accounts of the nature of consent: the attitudinal and the performative.".
350. 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.
351. A 1988 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.
352. 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).
353. Commonwealth v. Berkowitz, 641 A.2d 1161 (Pa. 1994).
354. Dan M. Kahan, Culture, Cognition, and Consent: Who Perceives What, and Why, in Acquaintance-Rape Cases, 158 U. PA. L. REV. 729, 741 (2010).
355. Describing reactions to the case). Some claim that women frequently "freeze" in response to unwanted sexual advances.
356. 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.
357. 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." Note.
358. Vivian Berger, Not So Simple Rape, 7 CRIM. JUST. ETHICS 69, 76 (1988).
359. 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.
360. 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.
361. Sexual Offences Act, 2003, c. 42, §§ 1, 75(2)(d) (U.K.); State v. Moorman, 358 S.E.2d 502, 505-06 (N.C. 1987).
362. 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.").
363. 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).
364. 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.
365. Sy Moskowitz, American Youth in the Workplace: Legal Aberration, Failed Social Policy, 67 ALB. L. REV. 1071, 1083 (2004).
366. "Statutory rape statutes conclusively presume that an underage victim is incapable of giving consent in most states.".
367. People v. Young, 235 Cal. Rptr. 361, 365-67 (Ct. App. 1987); Carpenter, supra note 175, at 337.
368. 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.").
369. State v. Galati, 365 N.W.2d 575, 578 (S.D. 1985); see also R v. Bree, [2008] Q.B. 131 ¶ 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'").
370. Shlomit Wallerstein, 'A 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).
371. 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").
372. People v. Giardino, 98 Cal. Rptr. 2d 315, 324 (Ct. App. 2000).