Rape Law Fundamentals

Modern American rape law is the product of historical contingencies, compromises, legislative inattention, successful reforms, and backlash. It is neither a puzzle to be solved nor a coherent system of rules and values. Perhaps the clearest lesson to draw from our criminal laws regarding sex is that there is no logic, reason, or consistency among them. As a result of its checkered past, myths and misunderstandings about rape law abound. Jed Rubenfeld’s recent article, The Riddle of Rape-by-Deception and the Myth of Sexual Autonomy, exemplifies the confusion many courts, scholars, and members of the public have about modern rape law. Rubenfeld’s specific proposal to base rape statutes on a right to self-possession, because it is derived from mistaken premises about rape law, would likely make legal over 90% of rapes in America. By replacing the non-consent element of modern rape statutes with a narrow force requirement, Rubenfeld’s recommendation essentially decriminalizes non-stranger rape and rape by a victim’s intoxication. In this Article, I examine the missteps Rubenfeld makes to explain why he ends up supporting such a disastrous conclusion. For example, Rubenfeld sees the need for his right to self-possession theory because he believes that autonomy is the sole basis that scholars offer for the foundation of rape law. However, rape is also properly supported as an independent offense by the nature and severity of harm caused, gender dynamics involved, and terror inflicted on the general population by widespread sexual violence. He also uses specious analogies and idiosyncratic conceptions of autonomy to establish the critical components of his argument. Despite the faults of his specific claims, Rubenfeld points rape scholars in a worthwhile direction. Instead of seeking diminishing returns with statutory tinkering, there is much to be gained by focusing on the foundations of rape law. By better integrating the fundamental values of rape law (autonomy, gender, harm, and terror), the major problems of high rape prevalence, law enforcement failure, and political hostility to rape victims that plague America can be better addressed.