Modern rape law is undertheorized. Over time, its original justifications have eroded. In their place, certain propositions have become generally (if not universally) accepted: women are sexual beings; their chastity no longer needs protecting. All this time, however, rape has persisted. Indeed, we now know that the danger is less a stranger in an alley than a husband, co-worker, date, or hook-up. In response to profound shifts in the way we understand both rape and female sexuality, the law of rape has become unstable. It badly needs reconstructing. Yet the old rationales cannot tell us why rape ought to be specially criminalized in the present day (or how).

In The Riddle of Rape-by-Deception and the Myth of Sexual Autonomy, Jed Rubenfeld rightly observes the importance of filling this conceptual void.1 Existing rape law rests on archaic understandings of female chastity and virtue that are indefensible. Yet we continue to recognize sexual assault as a unique violation. For the law to “treat rape as a distinct crime without relying on what it claims to repudiate,”2 a satisfactory justification must succeed those discarded. On this—the need for a “new structuring principle shorn of the sexism and defilement ideology of the traditional era”3—Rubenfeld is most convincing, and the contribution is an important one.

For a new structuring principle, the leading contender is sexual autonomy,4 which Rubenfeld ultimately rejects. His case study is sexual fraud, which he deploys in service of conceptualizing the wrong of rape. As a descriptive matter, rape law did not historically prohibit sex-by-deception, except where it was outlawed as seduction.5 This view of deceptive sex as not rape is the proper result according to Rubenfeld, who mounts a provocative defense of sex-by-deception.6 If rape-by-deception is a misnomer, he says, autonomy is not the norm at stake. Liberal notions of autonomy simply cannot be reconciled with the absence of accepted preconditions for valid consent.

In keeping with autonomy’s rise, it happens that the law no longer gives deception a categorical pass.7 But, for present purposes, let us set aside this development in order to address the more foundational challenge raised by The Riddle of Rape-by-Deception. The choices made by women and men regarding sexual activities are, after all, constrained. When a lover lies, or misrepresents, or neglects to share relevant information, we make decisions that are less than fully informed. Consent obtained under these circumstances is imperfect; depending on the specifics, it may be exceedingly problematic.8 Once we see this, Rubenfeld argues, the idea of consent falters, at least insofar as it is thought to delineate the sex/rape divide.9 And if rape law does not actually privilege consent, he suggests, sexual autonomy cannot be the central concern.10 Instead, rape implicates a right of physical self-possession, which means that extreme amounts of force—enough to “dispossess” a woman of her body—is required for sex to be rape.

In the discussion that follows, I reckon with this slightly reformulated version of Rubenfeld’s argument. For reasons quite different from those he offers,11 I agree that protecting autonomy is not the best structuring principle for contemporary rape law. Sexual autonomy may even be “mythical” insofar as autonomous decisionmaking in the sexual realm is impossible. A long tradition of feminist legal theorizing explains why this is so.12

As an alternative, I conceive modern rape law as protecting sexual agency.13 Part I sketches the contours of sexual agency as a governing principle for rape law. With this framework in place, Part II recasts the “riddle” of sex-by-deception, showing how agency survives Rubenfeld’s challenge to autonomy, and Part III confronts the force requirement. A brief conclusion emphasizes how the move from autonomy to agency establishes consent’s boundary-marking status.

I. Sexual Agency

The turn to agency is rooted in legal feminism’s attention to subordination and its consequences for women in particular. Kathryn Abrams has described how “the liberal norm of autonomy has been modified—or . . . ‘reconstructed’—by its encounters with contemporary feminist theory.”14 Certain features of the “autonomous person” are incompatible with core feminist insights. For instance: “his tastes, opinions, ideals, goals, values, and preferences are all authentically his;”15 and he is not “systematically confined by differentials in power or circumstances that can shape internal processes of judgment.”16

What notions of autonomy overlook is that the self is socially constructed in a “context of intersecting power inequalities”17—a context featuring gender as a primary locus of subordination.18 Unlike the autonomous self, the agentic subject operates under meaningful constraints. The disconnect between her reality and the premises of liberal autonomy warrants a theoretical reworking. Agency is the construct that results.

Abrams’s synopsis is most helpful:

The conceptual move from autonomy spotlights sexual agency as a related norm posing a separate set of concerns and complications. Sexuality is deeply implicated both in self-definition20 and in self-direction.21 In particular, female sexuality is constructed in a world of rampant gendered violence; yet women continue to insist—perhaps more so now than ever22—that sexual subjectivity is of value. Even in a world of widespread sexual violation, women possess a sexuality of their own.

Although I do not want to overstate agency’s departure from autonomy,23 agency, it seems to me, is better able to contemplate the complicated, power-infused dynamics that surround sexual relations.24 And agency leans toward a positive understanding of sex—sex not only as pleasure, but as resistance to subordination.25 In particular, female sexuality has the potential to defy repronormative ideologies that linger still today.26 In contrast, autonomy’s stance on the subject of sex seems to contemplate neither its social construction nor its capacity to transform power dynamics within relationships and outside them.

For agency, sexual desire, possible and fulfilled, is fundamental, and women’s sexual subjectivity is afforded privileged status. This is of course an oversimplification. In fact, profound tensions inhere in the concept of sexual agency, confirming both its distance from autonomy and its relation to it.27 The notion that sexuality is (or can be) abstracted from social constraints obscures a range of coercive practices—even short of rape28—that influence women’s sexual choices.29 Decontextualizing sexuality risks the elision of troubling (though not illegal) pressures on women’s decisionmaking, sexual and otherwise.30

Sexual agency is bound by the circumstances under which it is exercised. By contextualizing consent, it is possible to generate an account of what unwanted consensual sex looks like. Consider Robin West’s helpful explanation:

Women make decisions about whether to consent to sex in a fraught social context. The fallacy of equating consent with desire may be pronounced for teenage girls, who often consent to sex for reasons other than sexual desire and whose identities are not yet fully formed.32 For many college women, expressions of sexuality are embedded in a pervasive “hookup culture.”33

In short, sexual agency is incomplete. As I have summarized this conception:

In my view, the harm of rape is best described in relation to the promise, and the imperfection, of agency.35 Using agency, rather than autonomy, as our referent, let us turn to two recurring doctrinal dilemmas: how to treat “deception,” and, more important, whether to define rape as necessarily involving force. I cannot exhaust these subjects here, but I begin mapping a different approach to modern rape law, one that is oriented toward sexual agency.

II. Deceit

For all the reasons that sexual agency is complicated, so, too, is it a mistake to idealize sexual subjectivity and consent along with it. Although consent may evidence a desire for sex, this is not always the case. Instead, consent and wanting can diverge.36 When they do, women engage in sex that is neither rape nor apparent cause for celebration. This category of sexual conduct is inadequately described by an autonomy norm that negates social context. Agency provides a much richer account of the space between consenting and wanting.

So, too, does agency better position consent as the pivot point for distinguishing rape from sex. Women’s sexual conduct might be inseparable from women’s oppression.37 Even so, living as a sexual subject means that one can consent to sex—for whatever the reason, without judgment. When one’s sexual expressions count, one acts as a subject in the world. With this comes the possibility to “disrupt dominant sexual discourses,”38 to assert power within a relationship, to contest imposed definitions of one’s self, and to forge new definitions.39 For women to consent to sex is to assert agency.

Likewise, for women not to consent to sex, too, is to assert agency. Nonconsent reflects an insistence that one’s decision not to have sex matters—that it is not subordinate to the other’s. If sex is done to a woman irrespective of this decision, her agency has been quintessentially violated. Put differently, if sex without consent is simply sex (and not rape), the nonconsenting woman is more akin to object than subject. As compared to the actor who imposed his will upon her, she is relatively powerless. Sex against one’s will is sexual agency’s antithesis.

An insistence that sex and rape are distinguishable by consent’s presence or absence furthers sexual agency. At a minimum, affording meaning both to a woman’s consent and to her nonconsent affirms her existence as a sexual subject. Consent qua consent thus becomes a matter of paramount importance.

On this view, it cannot be said that “defrauded ‘consent,’” which lies at the heart of Rubenfeld’s Riddle of Rape-by-Deception, is “no consent at all.”40 On the contrary, a woman’s consent is significant, even if “defrauded.”41 This is not to say that deception can never vitiate consent. (As I discuss below, I think it can.) But lines can surely be drawn around consent that is informed enough to pass muster.42 Just as in other contexts in which consent must be evaluated, what constitutes being “informed” is a matter of degree.43 But especially in the sexual realm, where agency is constrained in all sorts of ways,44 misinformation hardly seems like cause for absolutism.45 Autonomy’s preoccupation with information deficits ignores a social context that affects sexual decisionmaking and constructs sexual preferences in far more significant ways.46 Of the asymmetries involved, those of the informational sort tend to pale in comparison. Agency accounts for the full spectrum of forces at work, yet still values consent.

To be clear, sexual misrepresentation might be tortious47 or even criminal.48 But, except under narrow circumstances, it does not seem to be rape. Foregrounding agency, I will explain why before showing how impersonation is different.

Whether we consent to sex under the circumstances presented depends on factors that are highly context-dependent and, to some extent, idiosyncratic.49 For A, anyone over forty is too old; for B, under forty is too young. For C, sex belongs in a long-term relationship; D could not disagree more. E wants sex only with a kind soul, F only with a professional success, G only with a committed environmentalist, H only with a non-felon and disease-free lover. The list could go on indefinitely—and this one doesn’t even encompass which acts are consented to,50 or the far more elusive aspects of sexual desire.

At times (oftentimes, Rubenfeld contends51) we agree to sex based on a misimpression of the “facts”—facts that are, let us say, material to our consent.52This misimpression might be created by outright lies calculated to induce consent. It might also result because the party wanting sex misleads or conceals information that would, if known, lead to nonconsent.53 There are plenty of names for people who behave like this, most unfit for academic discourse. (Interestingly, many are gendered.) But, barring additional facts, “rapist” is not among them. Consent was obtained; it cannot be discounted solely by virtue of its imperfection. Otherwise, in a world where sexual agency is constrained in all sorts of ways, there could be no valid consent.54 Sexual subjectivity would falter, to say the least.

Sex does not become rape because one of the consenting parties is incompletely informed, though we might decide that some conduct calculated to induce this uninformed consent is sufficiently reprehensible that it is properly criminalized.55 That said, a wide enough gap between what a party consents to and what actually transpires may mean that there is no consent to what actually transpires. This is sex without consent. This is rape.

I realize that this understanding of sex-by-deception also requires that lines be drawn. Suppose a woman seeking a long-term relationship consents to sex with a man who, unbeknownst to her, is married. I am willing to reject the claim that there was no valid consent here, and I maintain that the wrong to her is qualitatively different from what it would have been had she not consented at all.56 The distinction is best understood by reference to sexual agency. Giving meaning to consent acknowledges that agency can be exercised within degraded relationships, and even within relationships of unequal power. Otherwise, assertions of agency would be impossible.

In any event, the prospect of line-drawing around rape—or, for that matter, around any kind of crime—is inescapable; the issue is how best to conceptualize the category. To my mind, inquiring whether a person chose sex57 with this particular human being, and affording meaning to her decision, is most consistent with an understanding of women and men as sexual subjects. When a person has been deceived as to which human being she is choosing sex with, what would be sex becomes rape. In this scenario, whatever consent was given was not directed to the one who (actually) engaged in the sex acts. Therefore, what (actually) occurred was unconsented-to sex. On a relational view, which agency adopts, when a woman’s expressed choice is subordinated to another’s, she is significantly deprived of her ability to self-direct and to self-define. For all the reasons we have seen, this is a pronounced violation of the sexual agency norm.

This reasoning suggests that the medical misrepresentation and spousal impersonation cases are rightly classified as rape.58 So, too, is the impersonation of someone other than a spouse (notwithstanding equivocal legal treatment).59

One court to expressly insist that identity matters is the Court of Military Appeals.60 Following is the evidence in a case called Traylor:

On appeal, the defendant argued that this evidence was insufficient to support a finding of nonconsent, since the victim was engaging in consensual intercourse with Sly at the time the defendant entered her. The court disagreed, observing that “‘[a]ctual consent’ means consent not only to the act of intercourse, but also consent ‘based on the identity of the prospective partner.’”62 To dispel any remaining confusion, the court concluded: “It is not necessary that a woman know the true identity of her sexual partner or know anything about him in order to consent, but she must be agreeable to the penetration of her body by a particular ‘membrum virile.’”63

Traylor shows the importance of attending to the scope of consent.64 A relational perspective suggests why the identity of one’s sexual partner can be, and very often is, a critical component of sexual consent—enough to warrant a legal presumption of materiality. When we consent to sex with one individual, we are not consenting to sex with anybody else. When one chooses a “particular ‘membrum virile,’” as opposed to any other, that choice is rightly afforded meaning.

III. Force

Controversy surrounding the force requirement is hardly new.65 Rubenfeld, however, offers a defense consistent with his solution to the “riddle” of rape-by-deception.66 Sexual agency, in contrast, exposes force as rape law’s “red herring.”67

The premise can be simply stated: sex without consent is rape regardless of the quantum of force, because disregarding consent vanquishes agency. Affording legal meaning to consent is consonant with a view of women as sexual subjects. To the extent rape law requires extra force, even today,68 it discounts the importance of sexual agency. I say “extra force”—sometimes referred to as “extrinsic force”69—because, as a matter of physics, sex must involve force (that is, an influence that causes a change in movement). How much force matters only because rape was, since its legal inception, defined as sex against the will and with (surplus) force.70

Rubenfeld creates new conceptual space for this vestige of traditional rape law. He contends that rape violates a right of self-possession, or the right to physically possess one’s own body,71 which means that without physical force—a good deal of it, apparently72—the interest at stake is not violated.73 This returns us to a familiar place: physical force, not nonconsent, is what transforms sex into rape.

But the familiar place does not fully resemble what we know. Features of it are, or appear to be, novel.74 For instance, I am unsure about the force required for a person to “actually take[] over your body—exercising such complete and invasive physical control over it that your body is in an elemental sense no longer your own.”75 I wonder whether the kind of force needed to “become master” of a body, or to “utterly wrest” a body from another, is even greater than what we’ve yet seen the law insist upon.76 Perhaps not.77 But it seems entirely plausible that the right of self-possession ratchets up the force requirement.

Even if I am wrong about this, the doctrinal implications of rape as a violation of self-possession are at odds with sexual agency and its privileging of consent. To highlight the differences between these two approaches, I will describe a set of cases where nonconsent and force are most likely to diverge.78 These cases pose a discrete question for rape law: is nonconsent enough to make sex rape? In future work, I expect to provide a more comprehensive account of how these areas of law would look with sexual agency as a governing principle. For now, it is enough to identify the circumstances that tend to detach nonconsent and force.

As a rule, nonconsensual sex that lacks excess physical force occurs within relationships, loosely defined.79 (Not coincidentally, this is where the law of rape is least effective.80) In some relationships, fear based on past threats or violence stands in for force.81 Its need may also be obviated by the vulnerability that comes with trust.82 Perhaps we can group these pressures under the general rubric of “relationship-related substitutes for surplus force.” In non-physical ways, aspects of the relationship function to achieve nonconsensual sex.

Other force-substitutes are more tangible: they are sleep and intoxication.83 As a rule, extra force is not used in these cases because it is unnecessary: whether a woman is unawake or substantially impaired, she is not in a position to exert her will.84

One view of these cases is that, because there is no force, there is no rape—even where there is no consent.85 The question whether consent can be implied under certain circumstances86 should not confuse the issue. If this view is correct, and force beyond penetration is required, who comes upon the sleeping woman is irrelevant: regardless of her nonconsent, she cannot be raped.87 The same is true for the woman who is extremely intoxicated—perhaps even passed out—such that no force is necessary to overcome her nonconsent.

This seems not to trouble Rubenfeld, who poses the question “whether every penetration of any unconscious body necessarily inflicts the profound violation of rape” (as opposed to assault-and-battery).88 His answer: “It seems to me that this is plainly not so for some persons in some circumstances.”89 The notion of sex with (or, more accurately, to) an unconscious body hints at a distinction that Rubenfeld identifies as potentially relevant to this inquiry—namely, whether the victim experiences the violation.90 For me, this is beside the point.91 Sex with a comatose woman?92 Rape. As is sex with someone who is passed-out drunk. Sex with a woman unable to perceive her sexual violation because of severe developmental delays is rape too, on agency’s account. Yet as I understand it, the right of self-possession may not be implicated in these scenarios.93 After all, on this view, the absence of consent does not make sex rape.

If rape is a violation of sexual agency, as I have argued, none of this makes sense. Sex with a (nonconsenting) sleeping woman is akin to sex with an object, not a subject; the woman is acted upon. In the same way, a nonconsenting woman, because of intoxication, can be forced absent force to have sex.94 Since sex without consent is sex without agency, it is rape.95

This setting of rape’s parameters raises questions of its own.96 But they are the questions to be asking as we enter the next generation of law reform.

Conclusion

For most of our history, women’s sexuality has been variously denied, controlled, and harnessed. Today, women insist on the positivity of sexuality, or at least its potential. While social forces continue to construct sexuality in ways that warrant resistance, it can be said—emphatically—that expressions of sexual consent have meaning.

Traditional notions of autonomy tend to deemphasize a context of unequal power that is key to understanding these realities. Autonomy thus falls short of explaining both the promise and the perils of sex for women in particular. This leaves rape law vulnerable to remaking in a direction that accounts for neither the value of female sexual subjectivity, nor the harm that results when it is denied. This leaves rape law prone to fetishizing force.

Modern rape law demands new conceptual justification. Attending to sexual agency is, in my view, the way forward. Rape is the negation of women as sexual subjects. With sexual subjectivity positioned as the alternative, the wrong of rape can be discerned in starkest relief. The law of rape can never perfect sexual agency; but the law can provide a remedy for its most egregious violations.

Deborah Tuerkheimer is a Professor of Law at DePaul University College of Law. J.D., Yale Law School; A.B., Harvard College. For their insightful comments, she is grateful to Cynthia Bowman, Andrew Gold, Marc Spindelman, and Robin West.

Preferred citation: Deborah Tuerkheimer, Sex Without Consent, 123 Yale L.J. Online 335 (2013), http://yalelawjournal.org/forum/sex-without-consent.