On Rubenfeld and the Riddle of Rape-by-Deception

[Warning: This post contains discussions of sexual assault and rape.]

People sometimes lie to get sex. That would appear to be uncontroversially true. Some of these lies are more important than others. In particular, some forms of deception seem to undermine what might otherwise be a valid consent to sexual contact. If Bob tells Jane that he is 6 5” prior to their having sex, then I suspect no one would say that her consent is invalid when it turns out he is really 6 3” (maybe some would). On the other hand, if Bob tells Jane he is performing a medical procedure, when in reality he is sexually penetrating her, then I suspect most people would say that consent is absent.

These two cases lie at opposite ends of a spectrum; there are many more problematic cases in between. Indeed, the whole impact of deception on sexual consent is fraught and open to much controversial debate. Recently, Yale legal scholar Jed Rubenfeld added to this controversy with his article on the so-called “riddle of rape-by-deception”. The article makes five significant claims. First, that sexual autonomy is the rationale for modern rape law. Second, that if this is the case, then all forms of rape-by-deception should be criminalised. Third, that this implication is problematic and reveals flaws in the sexual autonomy rationale. Fourth, that the autonomy-rationale should be replaced by a self possession rationale. And fifth, that this rationale implies that a force requirement should be an essential part of rape law.

Like many others, I think Rubenfeld’s overall argument is flawed. In this post, I want to explain why. In doing so, I eschew many of the legal aspects of his argument. Typical of the academic lawyer, Rubenfeld tries to wear a couple of hats in his article, one of which we may call the “legal-descriptive” hat, the other the “ethical-critical” hat. With the former hat he tries to explain the normative principles guiding current law; with the latter hat he tries to locate the ethical standards by which the current law should be judged and use this to guide the construction of alternative normative principles. Although there may be some practical value to wearing the former hat, it is not something I am interested in wearing in this post. As far as I can see, the legal-normative discussion is a distraction from the real core of Rubenfeld’s argument, which is ethical in nature. There are criticisms to be made of the legal aspects of his argument too, amply made by other people.

The remainder of this post will be broken down into three stages. The first will look at Rubenfeld’s critique of sexual autonomy and the criminalisation of rape-by-deception. The second will outline his alternative principle for rape law: the self-possession principle. The third will consider the problems with this proposal. This will highlight one of the main reasons for discussing Rubenfeld’s argument — apart from the intrinsic and instrumental interests of the particular subject matter — which is how it exhibits a classic flaw in applied ethical reasoning.


1. Rubenfeld’s Case Against Rape-by-Deception and Sexual Autonomy
Rubenfeld suggests that the most popular basis for modern rape law is the principle of sexual autonomy. This principle has two aspects to it:

Positive Sexual Autonomy: You have a right to have whatever kind of sex you like, with whomever you like, provided you respect their rights too.

Negative Sexual Autonomy: You cannot be obliged to have sex (of whatever variety, with whoever it might be) if you do not want to have it.

Consent is central to the operation of this principle. It is what transforms impermissible sex into permissible sex. In his analysis, Rubenfeld notes a number of problems with sexual autonomy, particularly in its positive form, and it is true that many jurisdictions restrict exercises of sexual autonomy in ways that are not consistent with the basic idea of respecting individual choice (e.g. by imposing restrictions on certain kinds of sexual activity), nevertheless many of these criticisms can be ignored here. The big criticism, and the one that is at the heart of Rubenfeld’s article, is the claim that if we truly wished to respect sexual autonomy, we would have to criminalise all forms of sex-by-deception (Rubenfeld uses the term “rape-by-deception” but that seems conspicuously question-begging to me, so I have changed it). He argues that this is counter-intuitive and undesirable. Hence, we should abandon the principle of sexual autonomy.

In essence, Rubenfeld defends the following argument:

• (1) If we truly respected the principle of sexual autonomy, we would have to criminalise (as rape or serious sexual offence) all forms of sex-by-deception.

• (2) But we shouldn’t criminalise (as rape or serious sexual offence) all forms of sex-by-deception.

• (3) Therefore, we should not respect the principle of sexual autonomy.

Because of his mix of legal-normative and ethical approaches, Rubenfeld defends the premises of this argument on a variety of grounds, some of them involving analyses of case law, some of them relying on general ethical intuitions and ideals. In keeping with what I said in my introduction, I’ll try to ignore the legal analysis and focus on the ethical claims.

When it comes to defending the first premise, Rubenfeld argues that this seems to be the implication of deception in other contexts in which we wish to respect autonomy (e.g. permission to enter a property), and, perhaps more importantly, that it seems to be particularly true in the sexual context, given the intimate nature of the contact involved. So, for example, if someone wishes to have sex with a person of a particular age, race, height, profession, educational background (and so on), why shouldn’t we respect their wishes? Why shouldn’t deception as to those characteristics undermine consent?

In defence of the second premise, Rubenfeld initially appeals to the counter-intuitive results it would entail. For example, it would seem to imply that if Bob lied about his height, weight, age (or whatever), he would be guilty of rape and that doesn’t seem right, does it? Rubenfeld builds upon this by adducing further examples:

A. If sex-by-deception were to count as rape or serious sexual offence, then children who were statutorily raped, could also be guilty of an offence. The situation envisaged here is one in which an adult has had sex with a child (what counts as a “child”, legally speaking, varies from jurisdiction-to-jurisdiction) who has lied about their age. This has happened in several reported cases, and Rubenfeld suggests that the implication that these children are guilty of an offence is unwelcome.

B. If sex-by-deception were to count as rape or serious sexual offence, then many more women would be guilty of sexual crimes. Rubenfeld doesn’t adduce any evidence for this, but I suspect he is simply appealing to the popular stereotype of women lying about certain things in order to attract a sexual partner (age perhaps being the most stereotypical lie).

C. If sex-by-deception were to count as rape, it would imply that the assaulter in the Craigslist case was himself a victim of a sexual crime. This is a reference to a particular and highly controversial case. Roughly, this is what happened: Jebidiah Snape was the ex-boyfriend of a woman who was raped under conditions of extreme force (tied-up and held at knife point) by a man named McDowell. Snape had put an ad on Craigslist, along with photos of the woman, asking for “an aggressive man with no concern for women”. McDowell had responded to this ad and received further emails from Snape, pretending to be the woman, and claiming that she was looking for “humiliation, physical abuse and sexual abuse”. McDowell said that he acted, sincerely, on the basis of these communications. The point Rubenfeld makes is that if we take him at his word, he would himself be both the perpetrator of a violent rape and a victim of a serious sexual assault. This is a counter-intuitive result.

In addition to these three negative reasons for rejecting the criminalisation of sex-by-deception, Rubenfeld also argues that sex-by-deception has its merits. Sometimes we shouldn’t reveal everything prior to a sexual encounter, sometimes it is part of the whole culture of love (which Rubenfeld describes as a “vast engine of deception”). To criminalise all lies and all concealments would be impracticable and, indeed, undesirable since some of them are just part of the game.

No doubt there are problems with many of these claims, but with them Rubenfeld thinks has defended his second premise and endorsed his conclusion. The question then becomes: what alternative basis should there be for rape law?


2. Rubenfeld on the Right to Self-Possession and Rape
The answer lies in the principle of self-possession. This grounds rape law in a property-based theory. Some of you may know that rape law was classically conceived in these terms, albeit the relevant property interests were those of one person over another (i.e. right of the husband over his wife, right of the father over his daughter). Hence, rape was a crime because it interfered with those property rights. The difference with the self-possession theory is that it is the individual’s property right over themselves that is interfered with.

The idea is relatively straightforward. We each have (admittedly imperfect) control over our own bodies. This control plays a crucial role in the maintenance of selfhood and identity, and can have devastating and traumatic implications when it is lost. This is evinced by the problems faced by people who do lose this property of self-control through disease or accident. Its erosion is also the central problem with rape and crimes of sexual violence. As Rubenfeld sees it, the real wrong at the heart of these crimes is the wrong of somebody literally taking control of your body and using it for their own ends.

Of course, it then becomes critical that we have a clear idea of when exactly a person can be said to have “taken control” of another person’s body. Rubenfeld maintains that you do not lose control of your body through embarrassment, deception or fraud; you only lose it when someone exercises “such complete and invasive control over [your body] that your body is in an elemental sense no longer your own”. Rubenfeld uses analogies with torture and slavery at this stage to flesh out the concept. These are two paradigmatic instances of someone exercising total control over the body of another.

When it comes to rape law, Rubenfeld argues that the self-possession theory has a number of advantages. In particular, it doesn’t have the troubling implication of criminalising all sex-by-deception, and it captures (he argues) the phenomenology of rape victims (i.e. provides an explanation for why rape is such a traumatising and harmful crime).

It also has, he admits, a number of less welcome implications. First of all, it implies that a force element is essential to the crime. In other words, it holds that rape can only be committed if the perpetrator has exercised sufficient force (he says “violent force”) to take control of the victim’s body. This is troubling since there has been a long fight to rid rape law of a force requirement. Furthermore, the self-possession theory implies that the following should not necessarily be counted as examples of rape:

Unconscious sex: The sexual penetration of a person who is sleeping or otherwise unconscious should not count since it doesn’t involve the perpetrator taking forcible control of the victim’s body. Nevertheless, Rubenfeld concedes that it should be a crime, perhaps a simple assault or battery.

Statutory Rape: In many reported cases of statutory rape, no physical force is exercised over the victim, so this wouldn’t count as rape either. Rubenfeld argues that this is the legal position anyway since the law acknowledges there are distinct interests and harms at stake in such cases. Hence, this should really be an independent category of offence.

Intoxicated sex: In many reported cases, people have unwanted sex while highly intoxicated (but not unconscious or passed out) without force being used. These cases would no longer count as rape (if force were used, they would, but otherwise they wouldn’t).

Some of these implications might be thought disturbing and counter-intuitive, but Rubenfeld maintains they should be embraced in order to relocate rape law on a sound principled basis.


3. Criticisms of Rubenfeld’s Argument
Thus far, I’ve held off on criticising Rubenfeld’s argument, preferring instead to outline the key moves he makes in defending his self-possession theory. But with that task out of the way, I can at last turn to some criticisms. I have no intention of being exhaustive here. There are several published responses to Rubenfeld’s work, some of them quite lengthy. You are free to peruse those if you wish. I will focus on three lines of criticisms, two relatively specific, and one general.

The first criticism was foreshadowed in the introduction. Rubenfeld’s dismissal of sexual autonomy and rape-by-deception seems to be grounded in an overly-strenuous theory of what kinds of deception would undermine sexual autonomy. Some of the counter-intuitive and problematic implications he identifies only follow if we accept that every type of deception counts when it comes to sexual consent. But surely that is to accept too much? If I am consenting to medical treatment by a doctor, all I need to know is what the treatment will be, its likely rate of success and the doctor’s qualification to administer it. It does not matter if she lied about where she spent her summer holidays, or who her favourite band is.

The point is that certain facts are material to consent and certain others are not. No doubt it will be a laborious and messy exercise to figure out what is material and what is not; no doubt it will vary from case to case; and no doubt it it may be trumped by other considerations (e.g. suppose a racist mistakenly has sex with someone they thought belonged to their own race, should we allow their prejudice to ground a rape conviction?). Still, there is no reason not to try to develop a theory about what information really counts when it comes to sexual consent.

The second criticism simply has to do with the alleged implication of the self-possession theory for rape law. Rubenfeld insists that violent force is needed in order for someone to truly take control over another person’s body, but I just don’t see why that has to be the case. The slavery analogy, to which Rubenfeld appeals, seems to illustrate this point. Slavery isn’t simply maintained by force and cruelty; it is also maintained by cultural norms, and behavioural dispositions. A slave could live under the dominating control of a slave master, without that slave master ever forcibly restraining them. But if such a slave’s right to self-possession would be violated in that context, it is difficult to see why something similar couldn’t happen in the rape/sexual assault context.

Finally, and more generally, Rubenfeld’s whole method of argumentation is strangely self-contradictory. This criticism has been made by others, but I’ll try to summarise it briefly here. If we go back to his original argument against sexual autonomy, we see that it has the following abstract form:

• (4) If we accept principle P, consequences Q, R and S follow.

• (5) Consequences Q, R and S are undesirable/counterintuitive.

• (6) Therefore, we should not accept principle P.

In other words, the argument urges us to reject a particular principle on the grounds that it leads to unwelcome results. The problem is that Rubenfeld’s preferred principle of rape law is vulnerable to an identical form of argument. As follows:

• (7) If we accept the self-possession principle, then: (a) the force requirement is an essential part of rape law; (b) not all cases of unconscious sex will count as rape; c) not all cases of statutory rape will count as rape; and (d) not all cases of undesired intoxicated sex will count as rape.

• (8) Consequences (a)-(d) are undesirable/counterintuitive.

• (9) Therefore, we should not accept the self-possession principle.

Rubenfeld insists that we need some coherent principled basis for rape law and so we should embrace these consequences anyway. But it’s hard to see why the same argument could not be made in favour of the sexual autonomy principle that he rejects. It seems like he would have to argue that the undesirable consequences of his principle are less undesirable than the consequences of the autonomy principle, but I think he would have a hard time making that case. (All this is assuming the principles really have the implications he claims for them).

In the end then, Rubenfeld’s principle seems problematic because it fails to match the very same standards he sets for the autonomy principle.