Introduction

Courts, legislatures, and legal scholars have been fascinated with rape cases involving fraud or deception for more than 150 years,3 fueled by some vivid real-world examples.4 Some legal scholars have argued that this fascination with rape-by-fraud has been to the detriment of the overall evolution of rape law.5 In proposing a solution to the riddle of rape-by-deception, Jed Rubenfeld argues for replacing the “myth” of sexual autonomy with the right to self-possession.6 In doing so, he goes too far in retrenching—or, perhaps more accurately, eviscerating—rape law doctrine while ignoring the modern “state of the art” of sexual offense provisions. After he has finished pruning rape law to deal with the conundrum of rape-by-deception, there is not much rape law left. Moreover, Rubenfeld’s critical foundational claim—that deceptive sex “isn’t that bad”7—is not empirically sound and is not respectful of the real harm experienced by victims. It is neither an accurate reflection of the normative development of rape law nor consistent with the evolving trajectory of rape law doctrine. Finally, Rubenfeld’s all-or-nothing solution may be far worse than the problem he seeks to remedy, especially in light of other, less drastic means of reconciling cases of rape-by-fraud with sexual autonomy. Rather than drawing the line at force and eliminating nonconsent, criminal rape law should develop a more robust understanding of sexual autonomy, the contours of effective consent, and cognizable fraudulent threats to that consent.

I. A Radical Shrinking of Modern Rape Law

Rubenfeld argues the legal system should not criminalize rape-by-deception because the notion that rape law8 vindicates the victim’s sexual autonomy is a myth that should be rejected. He proposes that we enshrine the right to self-possession, in place of sexual autonomy, as the guiding principle at the heart of rape law, likening rape under these circumstances to slavery and torture, and suggests that we only punish those who violate this right of self-possession. One result of this analysis is to resurrect the “much-maligned”9 force requirement as the defining, indispensable element of rape. He argues: “States may criminalize all sex-by-deception if they choose, but violent rape violates fundamental rights in a way that sexual deception doesn’t, offering a justification to states that choose to stick to the force requirement.”10

Rubenfeld’s proposed solution does not end there. He would also reject cases involving rape-by-coercion, because recognizing such cases would also require the recognition of rape-by-deception.11 Further, he would eliminate any rape provision that relies exclusively on nonconsent, thereby excluding categories of rape that have existed since the inception of rape law12—rape of an unconscious, mentally incompetent, or physically incapacitated person13—and presumably, although he does not state this, a wide variety of modern sexual offenses written exclusively in terms of nonconsent. He would also restrict rape to only instances of forced intoxication, thereby requiring the defendant to administer the intoxicant to the victim before liability attaches.14 He would not sustain a rape prosecution, absent force, simply because the perpetrator exploited a power imbalance to secure sexual submission15 or the victim said “no.”16 Finally, Rubenfeld must also reject the traditional approach to rape-by-fraud, disallowing the twin exceptions of fraudulent medical treatment and husband impersonation because neither requires force. Taken as a whole, then, Rubenfeld’s fix for the rape-by-deception cases is to resurrect the force requirement for all rape and to eliminate the nonconsent requirement, such that traditional categories of rape and new, evolving categories of rape would be eliminated.17 However, Rubenfeld does not fully explain how his account of the central harm of rape—injury to the right to self-possession—could be superior to the dominant account when adopting it would require the elimination of a huge part of existing rape doctrine. Nor does he explain why this elimination would be superior to dealing with the thorny rape-by-deception cases in a more modest and direct way.

II. The Solution is Worse than the Problem

According to Rubenfeld, once the crime of rape is reduced to the most egregious forms of violation—which are comparable to the exceedingly serious offenses of slavery and torture—no conceptual or legal barriers exist to rejecting rape-by-deception claims as falling outside the realm of protection. Once we rid rape law of its focus on sexual autonomy, we can justifiably exclude cases involving fraud which violate such autonomy. Rubenfeld’s all-or-nothing solution, however, is worse than the problem he seeks to remedy.

First, Rubenfeld’s radical shrinking of rape law is diametrically opposed to the trajectory of the law’s development to date, which has offered members of society greater protection from sexual exploitation over time. In some senses, rape law’s evolution is not that different from the evolution of other common law crimes. For instance, at one time, theft merely consisted of the forcible taking of another’s personal property. Later, nonforcible takings were criminalized.18 Originally, burglary law was confined to night-time entries, but modern burglary statutes punish daytime break-ins.19 Even with respect to murder, the law has evolved to encompass a broader range of conduct. “‘[M]urder’ originally meant a ‘secret killing’ and only gradually, from the fourteenth century onwards, came to be the name of the worst form of homicide characterized by . . . ‘malice aforethought.’”20 Similarly, the trajectory of rape law has been toward greater protection of individuals and their sexual autonomy as we have evolved as a nation. Lawrence v. Texas is consistent with that trend.21 Rape law has evolved from its narrow focus on forcible sexual intercourse to a comprehensive array of sexual offense provisions covering a much broader range of conduct.

Second, Rubenfeld’s proposal to resurrect the force requirement for all forms of rape and eliminate nonconsent as the critical element in a host of other statutes would require the complete overhauling of virtually every sexual offense statute in the United States, eliminating hundreds of provisions that offer the modern populace protection from multiple and very real forms of sexual exploitation. Although force continues to be a mainstay of some sexual offenses, especially the most serious ones, the force requirement’s hegemony in rape law has been on the wane. In the real world, the once-unitary common law crime of rape,22 with its heavy reliance on force, has given way to a vast array of criminal statutes differing in coverage and degrees of severity. Rape has transcended its constrictive, one-dimensional roots to become an umbrella for a large number of diverse offenses.

A cursory examination of the modern statutory landscape reveals a wide variety of sexual offenses, variously labeled rape, sexual assault, sexual battery, and criminal sexual penetration, which fall into at least seven different categories. First, abuse-of-trust statutes punish individuals who abuse their professional relationships with victims to secure sexual compliance, including statutes directed at doctors, psychologists, and clergy members.23 Second, a host of rape statutes outlaw the abuse of positions of authority to obtain sexual intimacy; many of these are aimed at teachers, coaches, government officials, guardians, and prison guards.24 A third category encompasses a growing number of criminal provisions that outlaw nonconsensual sexual behavior, and simply drops any force requirement.25 A fourth category includes statutes prohibiting sexual intercourse when it is accomplished with coercion, extortion, or other nonforcible pressures.26 Fifth, modern rape statutes are populated with provisions protecting those who are drunk or drugged, sometimes requiring that the drug have been administered by the defendant.27 Sixth, an array of provisions protects unconscious, mentally incapacitated, physically helpless, and elderly persons.28 Finally, a healthy number of modern statutes criminalize various forms of fraud in obtaining sexual compliance, although many of these are limited in scope to particular types of fraud or particular circumstances in which fraud is perpetrated.29 The trend in state legislatures has not been to “stick to the force requirement.”30 Instead, these legislatures have expanded rape law to cover diverse settings and situations, organizing many of these provisions around nonconsent and abuse of power rather than force. Thus, the real cost associated with Rubenfeld’s solution to the riddle of rape-by-deception would be the rolling back of decades of rape reform, leaving potential victims unprotected from many types of sexual exploitation.

Third, Rubenfeld’s position is only the latest version of an age-old penchant to keep the crime of rape narrow in focus. But narrowing the scope of rape law effectively privileges a host of morally blameworthy and socially intolerable behaviors.31 In this context, it is impossible and undesirable to ignore the feminist critique of the history of rape law,32 including the objection that rape law has privileged one gender at the expense of the other and that the resulting legal rules are “‘boys’ rules’ applied to a boys’ fight.”33 Despite the gender-neutral language in most modern rape statutes, it is true that the vast majority of rape victims are women34 and the vast majority of perpetrators of forcible rape are men.35 Thus, truncating rape law’s protections will likely return us to a situation in which the law privileges men to take advantage of women, and does so by criminalizing only a very narrow set of heinous circumstances. Dorothy Roberts cogently argues:

To put it another way, the much-maligned force requirement is maligned for a reason: it privileged a great deal of conduct that we find morally repugnant in the twenty-first century. The cost of Rubenfeld’s solution to the riddle of rape-by-deception is too high, undoing decades of progress in making rape law fairer, less sexist, and more protective.

III. “[D]eceptive Sex, However Bad it May be, Isn’t That Bad.”

Rubenfeld’s solution to the riddle of rape-by-deception is also premised on the dubious proposition that “deceptive sex, however bad it may be, isn’t that bad.”39 Rubenfeld may be making either an empirical statement about the harm suffered by victims or a normative statement about the quantum of social harm necessary to criminalize this conduct.40 As an empirical statement (because this riddle is not merely an academic exercise), his argument is not consistent with reality nor is it respectful of the harms suffered by victims. The real-life victims of rape-by-fraud experience multiple physical, psychological, and emotional harms.41 The physical consequences of victimization include unwanted pregnancy, sexually transmitted diseases, and exposure to HIV and AIDS, possibly shortening or ending life.42 The psychological consequences of rape-by-fraud can be equally severe. Deana Pollard Sacks, writing about fraudulent relationships, comments:

Even courts recognize that victims who have been raped by their psychotherapists and other trusted persons must feel emotional devastation, a great sense of betrayal, and a violation of trust.44 Thus, to say that rape-by-deception is “not that bad” is to trivialize the harm suffered by victims of such occurrences.

Nor is it true as a normative proposition that the harms at the heart of these offenses are not worthy of vindication in a criminal justice system designed to evolve to meet the needs of modern society. As a description of the quantum of social harm necessary for criminalization, Rubenfeld’s claim that deceptive sex is not that bad is eerily reminiscent of arguments that courts and commentators made throughout history to limit the scope of rape law. One of the clearest examples of a doctrine that constricted the offense of rape was the “infamous” marital immunity.45 And a ubiquitous argument in favor of the marital exemption was, in effect, that rape within marriage was “not that bad”—after all, the parties were married to each other and the woman had had sexual intercourse with her husband on prior occasions. As Michelle Anderson observes, “a number of scholars have argued that spousal sexual offenses in general are not harmful enough for the justice system to criminalize.”46 Similarly, Joshua Dressler explains: “When intercourse is coerced on a given occasion in the marital relationship, the argument proceeds, the wife’s autonomy is less seriously violated than if the perpetrator were a stranger or someone with whom the victim had not indicated a general willingness to have sexual relations.”47

Moreover, arguments that particular kinds of rape are “not that bad” can have insidious and long-lasting effects. For instance, despite Rubenfeld’s assurances that marital immunity is “history,”48 a recent article reports that “at least twenty-four states retain some form of an exemption. These states criminalize a narrower range of offenses if committed within marriage, subject the marital rape they recognize to less severe sanctions, and/or create special procedural obstacles to marital rape prosecutions.”49 As further evidence of the tenacity of the marital exemption, some jurisdictions have actually expanded the marital exemption to include those who live together in a cohabiting relationship.50 Contrary to the claim that marital rape was “not that bad,” Jill Elaine Hasday reports: “[T]he best available empirical studies report that marital rape is both widespread and extremely damaging, frequently causing even more trauma than rape outside of marriage.”51 Anderson concurs: “[C]ontrary to popular belief, wife rape tends to be more violent and psychologically damaging than stranger rape.”52 Thus, the trend in the criminal justice system is to recognize that the harm of marital rape is significant and fully worthy of protection by sexual offense provisions—it is “that bad.”

Another example that cautions against categorically excluding large segments of potential offender behavior is the treatment that acquaintance or date rape has received in contrast to “real” stranger rape. One of the clearest articulations of this distinction is the 1962 Model Penal Code’s downgrading of a sexual offense when committed in the context of a voluntary social relationship:

Susan Estrich’s groundbreaking book and article critiqued the notion that “real” rape only occurs when the parties are strangers to one another, when force and violence is manifest, and when physical injuries are sustained by the victim.54 She argued for recognition that simple rape—perpetrated by a friend or acquaintance, when the defendant uses more subtle types of pressures, and when the injury is perhaps more psychological, emotional, or psychic than physical—is also “real” rape and worthy of protection under the law.55 Again, rape reform has produced a steady erosion in the sentiment that the harm to those who are raped by their social acquaintances and intimates—the vast majority of rape survivors56—is not “that bad.”

Thus, if Rubenfeld is making a normative statement about the quantity of social harm needed for criminalization, his argument resembles the same arguments made in different eras to restrict the scope of rape law’s application. The argument is familiar—the harm suffered by victims of unwanted sexual exploitation in the marital bedroom, on a date, or by nonviolent means that would be punishable if used to secure money or property57 are unworthy or less worthy of social protection. This is simply another way of privileging certain types of sexual exploitation. In the guise of solving the riddle of rape-by-deception by limiting rape to circumstances resembling the crimes of slavery and torture, Rubenfeld offers a conception of rape that is narrower and less protective than the current legal regime, and quite reminiscent of a long line of justifications for restricting the scope of rape law.

IV. Retaining Sexual Autonomy and Eschewing an All-or-Nothing Approach in Favor of Difficult Line-Drawing

Rubenfeld is clearly correct when he observes that the cases of rape-by-fraud pose a riddle not susceptible of easy solution. For me, the answer to this riddle lies not in rejecting sexual autonomy as a myth and erecting the right of self-possession as the social harm underlying rape law. The cost of this solution is too high. However, I do not believe that the right to sexual autonomy should be understood as virtually unlimited. Sexual autonomy cannot mean that we have the right to engage in sexual relationships with every one of our choosing. We have the Sixth Amendment right to counsel, but we do not have the right to be represented by Gerry Spence.58 Sexual autonomy has limits and it involves the ability to choose whether one wishes to participate in sexual conduct with a consenting partner. Finally, not all cases that might fall under the umbrella of rape-by-deception should be treated equally. The all-or-nothing approach is too simplistic.59 Instead, the riddle of rape-by-fraud cases should be unraveled by retaining sexual autonomy as the foundation of modern rape law, understanding the limits on the right of sexual autonomy, and developing a more robust understanding of which types of fraudulent (or deceptive) representations violate our right to sexual autonomy and which do not. How do we draw the line?60 That is the real conundrum of rape-by-fraud.

Although I cannot offer a simple, elegant, or perfect solution to the riddle that has vexed our criminal justice system for more than 150 years, I can offer a few line-drawing suggestions. We should start with one of the traditional exceptions to the common law exclusion of rape-by-fraud—fraudulent medical treatment, usually limited to cases involving fraud in the factum and not fraud in the inducement.61 This exception should be expanded to include all types of professional actors, not simply doctors, but also dentists, therapists, psychiatrists, psychologists, counselors, clergy members, nurses, paramedics, and a host of other persons whom we encounter in the context of professional alliances. One added benefit is that many statutes like this already exist in our web of modern sexual offenses,62 a web that is much larger and more complex than the one-dimensional definition of rape under the common law. Further, this exception should not be limited to those who practice only fraud in the factum, but should also include cases involving fraud in the inducement.63 Thus, a psychiatrist lying to a client about the psychological benefits of sexual intercourse with him would be equally guilty as a doctor pretending to give a patient a physical exam and secretly engaging in sexual penetration of the patient. Fraud practiced in the context of such professional alliances to secure sexual compliance should result in criminal liability for a sexual offense. The related questions of whether to call the crime “rape” or by another term, and how to grade the crime, are secondary. Criminally punishing those who use fraud to secure sexual compliance in the context of a professional, trust-based relationship would clearly communicate that some arenas of modern life should be free of sexual predation—zones in which fraud and deception are simply not acceptable.

Similarly, given the significant overlap between fraudulent and coercive inducements or pressures, a second line should be drawn to include rape-by-coercion, particularly as an abuse of a position of authority. Rather than rejecting claims of rape-by-coercion,64 we should accept them in the context of authority-based relationships, such as teachers, coaches, guardians, principals, prison guards, and many others who hold positions of power over potential victims. Although the perpetrator practices no fraud here, the inherent power imbalance in these situations so gravely affects the victim’s ability to give meaningful consent that it violates sexual autonomy.65 Some scholars have already noted the criminality of sexual conduct in this context. Joel Feinberg explores the overlap between fraud and coercion.66 Stephen Schulhofer discusses illegitimate pressures in the context of protecting institutional and professional relationships from sexual exploitation.67 An additional selling point is that the existing statutory picture is much clearer in the context of rape-by-coercion because forty jurisdictions have at least one criminal provision outlawing the abuse of a position of power to obtain sexual compliance.68 If we stopped here, and went no further, a large array of unwanted sexual exploitation would be criminally punished without infringing on what occurs in purely social or romantic relationships. However, it may be possible to go a bit further than drawing the line at trust-based alliances or power-based relationships.

In drawing some finer lines, we should consider the work of legal scholars who have sought to describe in greater detail the types of fraud that should result in criminal liability. Feinberg proposes that some fraudulent inducements, like bluffing warnings, can be so coercive that they prevent meaningful victim consent.69 For instance, if a perpetrator impersonated a doctor and falsely told a vulnerable patient that it was necessary for him to have sexual intercourse with her or she might die, then such a circumstance should be considered a coercive infringement on consent—and, I believe, a violation of sexual autonomy.70 Feinberg also suggests that false promises should result in criminal liability, again, if they are coercive enough (i.e., avoiding or eliminating an intolerable evil rather than offering an attractive prospect). He gives the example of a wealthy man who falsely promises to financially assist the mother of a sick child in return for her sexual favors. But he would exclude the same rich man who merely offers a desirable, but not desperately needed, alternative to the woman.71 Similarly, Schulhofer argues that some forms of deception are so illegitimate that criminal sanctions should apply. He specifically mentions falsehoods about pecuniary interest and nondisclosure or misrepresentations concerning significant health risks,72 a point that Rubenfeld appears to concede.73 Schulhofer would also add any deceptions “intended to create feelings of isolation, physical jeopardy, or economic insecurity.”74 In terms of existing legislation, some states specify a limited set of conditions involving fraud under which the victim’s consent, as traditionally understood, does not relieve the defendant of liability. For instance, California outlaws consent induced by fear based on fraud.75 Thus, the criminal justice system has made some progress in moving beyond purely professional alliances into a zone involving personal, social, or romantic relationships when the fraud is either so coercive or so illegitimate that its insulation from criminal penalty is unwarranted.

On the other side, we should draw the line to exclude “deceptive” practices such as clothing, underclothing, make-up, hair dye, cosmetics, and cosmetic surgery.76 These examples might be understood to trivialize the real problem raised by the rape-by-fraud cases. Perhaps we should consider Estrich’s suggestion that rape law should “prohibit fraud to secure sex to the same extent we prohibit fraud to secure money, and prohibit extortion to secure sex to the same extent we prohibit extortion to secure money.”77 Importing into rape law notions of fraud from offenses criminalizing the deprivation of money or property (tangible and intangible) may also yield some guidance on these difficult line-drawing issues. For example, in federal mail fraud doctrine, courts distinguish between intent to defraud and intent to deceive, thereby recognizing that not all lies are sufficient to trigger prosecution.78 As Rubenfeld acknowledges, materiality is an important component of this analysis.79

Whatever else might be written about rape-by-fraud, it is clear that the law of rape is evolving. The expansion of the circumstances under which fraud constitutes rape has been slow, conservative, and incremental. But perhaps this is as it should be in an area so fraught with controversy and disagreement. Many of the new statutes enacted by state legislatures were the result of courts’ calls for legislative action,80 reactions to specific cases that occurred in the jurisdiction, or both.81 In other words, legislative bodies created laws to fix problems in statutory coverage that arose from factual scenarios in the real world. A living law must change to deal with the contingencies of the modern era. In the real world, the question is not really whether to criminalize rape-by-fraud—because we already do so in many ways—the real question is when and under what circumstances. One cost of Rubenfeld’s proposal would be to halt this gradual evolutionary process. This would be a real shame, because more progress has been made in solving the conundrum of rape-by-fraud in the last quarter-century than in the previous 125 years.

Conclusion

Rubenfeld’s article is a self-consciously provocative contribution to the long-standing debate surrounding the question of criminalizing rape by fraud or deception. In the final analysis, I cannot agree with his elegant proposal because it represents too radical a rewriting of existing rape law, one that is inconsistent with a modern understanding of intolerable sexual practices. Leaving behind its narrow focus, dominated by force, modern rape law has been evolving as our notions of appropriate inducements to sexual conduct also evolve, and as our protection of women from male exploitation increases. To argue that we should return to an earlier statutory regime or an even narrower one—rolling back wave after wave of rape reform—seems regressive, anti-feminist, and inconsistent with a huge body of commentary arguing that sexual autonomy is an interest worthy of protection by the criminal law. The cost associated with Rubenfeld’s solution to the riddle of rape-by-deception is simply too high.82 The beneficiaries of Rubenfeld’s proposal will be the perpetrators of all forms of nonviolent, nonforcible rape. Reverting to a more limited understanding of what constitutes rape will be a disservice to those who want to live in a society free of unwanted sexual exploitation.

Patricia J. Falk is a Professor of Law and Charles R. Emrick, Jr.–Calfee, Halter & Griswold Endowed Professor of Law (2010-2013) at Cleveland-Marshall College of Law, Cleveland State University. She is grateful to her colleagues April L. Cherry and Sheldon Gelman for reading earlier drafts of this comment, to librarian Amy Burchfield for her excellent research assistance, and to the Cleveland-Marshall Fund for financial support.

Preferred citation: Patricia J. Falk, Not Logic, But Experience: Drawing on Lessons from the Real World in Thinking about the Riddle of Rape-by-Fraud, 123 Yale L.J. Online 353 (2013), http://yalelawjournal.org/forum/not-logic-but-experience-drawing-on-lessons-from-the-real-world-in-thinking-about-the-riddle-of-rape-by-fraud.