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When a New Jersey lawmaker recently proposed expanding the legal definition of rape to include "sex by deception", many people—myself included—balked at the idea. Of course lying to get someone into bed isn't rape. But … why not? Rape is currently understood to mean sex without a victim's consent and, in most other legal arenas, consent procured through deception is no consent at all.
Thus the riddle of "rape by deception" prompts us to consider: Why is rape a crime? Or, to put it another way, what exactly are we criminalizing when we criminalize rape?
I delved into this at Libertarianism.org this week, in a column titled "Against Sexual Autonomy: Why Sex Law's Lodestar Should Be Self-Posession." Borrowing heavily from Yale Law professor Jed Rubenfeld, I note that under our current conception of rape—and, by extension, rape law—we ought to count rape-by-deception as rape and the courts ought to hold so, at least if we're aiming for consistency.
Perhaps, then, our current philosophical and legal understanding of rape is the problem? Once upon a time, the rationale behind British and American rape law was to safeguard women's "purity". Rape was a crime because it resulted in "the destruction of female innocence," as the Supreme Court of Georgia put it in 1860. Under this logic, it makes sense why men were legally considered unable to be raped, or why a married woman was considered unrapeable by her husband. Thankfully, morality and defilement are no longer central concerns of rape law. Arguably, the foundational principle of not just rape law but most sex-related jurisprudence in America today turns on the concept of sexual autonomy. Put broadly, sexual autonomy means someone's prerogative to determine when, with whom, and under what circumstances they engage in sexual activity; to only engage in sexual activity to which they consent. In Coker v. Georgia (1977)—a case holding it unconstitutional to sentence someone to the death penalty for rape—the U.S. Supreme Court articulated why rape is criminalized thusly: it violates an individual's "privilege of choosing those with whom intimate relationships are to be established"—i.e., their sexual autonomy. "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," writes Rubenfeld. There's just one little conceptual problem: sex-by-deception. If fraud negates consent as it does in other areas of criminal law, than sex-by-deception is unconsented to sex… also known as rape. "By failing to criminalize rape-by-deception," argues Rubenfeld, "sex law fails to vindicate sexual autonomy."
Could rape law rooted in sexual autonomy, then, be the problem? And, if so, what are we left with?
Read the whole thing at Libertarianism.org.
This is my first contribution to what's going to be an ongoing libertarian-feminist column over there, also featuring Sharon Presley, Mikayla Novak, and Helen Dale. See Presley's first column for an excellent introduction to the libertarian feminist tradition. "Contrary to what some may think, the first feminist activists were not socialists, they were individualists and libertarians," writes Presley. In Novak's first column, she explores how the Austrian and feminist critiques of mainstream economics are compatible.
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