When people lie to obtain money, we call it theft. When they lie to enter private property, we call it trespass. When they lie to obtain sex . . . we have no idea what to call it. Some call it lawful seduction. Others call it criminal rape. An Israeli court recently aligned itself with the latter camp when it convicted an Arab man of rape-by-deception for falsely claiming that he was a Jewish bachelor in order to have sex with a Jewish woman. So too did a Scottish court when it convicted a transgendered man of “sexual intimacy by fraud” for failing to reveal his gender history to his girlfriend. In contrast, a grand jury in New Jersey sided with those who call lying to obtain sex an act of lawful seduction when it refused to indict a man for sexual assault for having sex with his fiancée after lying about his nationality, profession, and marital status. In response, New Jersey Assemblyman Troy Singleton sought to amend the state’s rape laws to include a crime of sex obtained by fraud or deception. Assemblyman Singleton challenged those who opposed the bill to ask themselves: should the law “afford less legal protection to a person’s body than it does to that person’s property?” After all, he asked, “if it is a crime to deceive individuals out of their property, how can it be lawful to deceive them out of their bodies?” The criminal case and subsequent bill sparked a national conversation and a healthy dose of scholarly commentary on the limits of rape law and the fuzzy line between permissible sex and unlawful rape.
Why is it so difficult to classify sex obtained by lies as either lawful seduction or criminal sexual assault? In an influential recent article titled The Riddle of Rape-by-Deception and the Myth of Sexual Autonomy, Professor Jed Rubenfeld suggested that our ambivalence towards punishing sex by deception is the product of a deep fissure in current rape law. More specifically, he claimed that the refusal to broadly criminalize sex by deception is in tension with the modern conception of rape as unconsented-to sex. If modern rape laws define rape as sex without consent, why does sex that is obtained as a result of deception not satisfy the definition of the offense? Expressed in more general terms, if contemporary rape statutes seek to protect sexual autonomy, why do these laws leave sex by deception largely unpunished? After all, deception typically negates consent outside of rape law, and choices that are the product of deception are generally viewed to be incompatible with autonomy.
In light of this tension, Rubenfeld contends that contemporary rape reformers must grapple with what seems like an unsolvable riddle. If they want to hold on to autonomy as the linchpin of rape law, they should broadly criminalize rape-by-deception. On the other hand, if they want to punish rape-by-deception only in exceptional cases, they should admit that rape statutes do not primarily seek to enhance sexual autonomy. The challenge presented by this riddle extends well beyond the narrow confines of rape-by-deception. If there are strong reasons against broadly criminalizing sex obtained by fraud, and if the selective criminalization of rape-by-deception is truly incompatible with the modern definition of rape as nonconsensual sexual intercourse, then both the definition of rape and the rationale that justifies its criminalization are in need of a significant overhaul. The riddle of rape-by-deception thus threatens to unravel the theoretical edifice upon which contemporary rape law is built.
This Article argues that the riddle of rape-by-deception is based on a misunderstanding of the kind of autonomy that lies at the heart of modern rape reform statutes. Properly understood, the chief goal of contemporary rape laws is to neutralize the coercion inherent in sexual relationships that take place in a male-dominated society. Since minimizing deception is only tangentially related to this goal, respect for the kind of sexual autonomy that rape law is primarily designed to protect is compatible with selective criminalization of rape-by-deception. This solution to the riddle of rape-by-deception not only preserves the conceptual framework that undergirds modern rape statutes, but also sharpens our understanding of the interests that contemporary rape reform is designed to protect.
The argument proceeds in four parts. In order to set the stage for a discussion of the kind of autonomy that undergirds modern rape reform and Rubenfeld’s formulation of the riddle of rape-by-deception, Part I explores the nature and scope of autonomy both outside and within rape law. What emerges is a variety of changing and competing conceptions of consent that promote different degrees of autonomy depending on the circumstances and the conflicting interests at stake in any given interaction.
Part II shows that comprehending the multidimensional nature of consent and autonomy sharpens our understanding of the core commitments underlying the modern rape reform movement and contemporary scholarship on rape law. A close reading of this literature, along with an understanding of the historical and cultural backdrop against which rape scholars were working at the time, reveals that modern rape reformers were chiefly interested in changing social and legal views regarding the kinds of pressures that ought to vitiate consent to sex. That is, modern rape reform was primarily about securing added (female) freedom from (male) coercion, both subtle and overt, and expanding the meaning of coercion beyond the patriarchal notion of physical force. More broadly, feminist rape scholarship highlighted the inherently coercive nature of all sex in a patriarchal society, thus calling into question the possibility of any kind of consensual intercourse in a male-dominated culture.
Part III solves the riddle of rape-by-deception. It argues that much of the confusion surrounding rape law in general and the riddle of rape-by-deception in particular is the product of a fundamental misunderstanding of the conceptual nature of autonomy and consent and of the kind of autonomy that lies at the heart of the modern rape reform movement. More specifically, the failure to grasp that modern rape reform primarily focused on enhancing the non-coercive dimension of autonomy prevents scholars from appreciating that drawing lines in the context of rape-by-deception serves to recognize different spheres and degrees of autonomy rather than to undermine the concept of autonomy writ large. Once this is fully appreciated, there is little tension between opposing the broad criminalization of sex by deception and the kind of sexual autonomy that lies at the core of contemporary rape reform.
After solving the so-called riddle of rape-by-deception, Part IV suggests some framing principles that can provide guidance to courts and legislatures when deciding whether to criminalize sex obtained by deception. Without intending to exhaustively cover all of the cases in which it is sensible to punish sex obtained by misrepresentations, I argue that obvious candidates for criminalization are cases that feature deception that is also coercive, deception that amounts to a breach of trust by a person in a position of authority, and deception that causes significant harm in addition to the infringement of the victim’s autonomy. The suggested approach would only selectively criminalize sex obtained by deception. Contrary to what Rubenfeld suggests, such selective criminalization is not in tension with the kind of sexual autonomy that modern rape statutes seek to protect. As a result, the so-called riddle of rape-by-deception turns out not to be much of a riddle at all.