Criminal Law
No Way Around Consent: A Reply to Rubenfeld on “Rape-by-Deception”
Recently, Jed Rubenfeld has argued for a new rape law principle that aims to unravel an intriguing riddle that he has posed about obtaining sex by means of deception. In this Essay, Tom Dougherty argues that Rubenfeld’s self-possession principle itself gives a role to consent that deception can effectively vitiate. In light of this difficulty, Dougherty suggests that the only tenable solution is to take rape-by-deception seriously.
Not Logic, but Experience: Drawing on Lessons from the Real World in Thinking About the Riddle of Rape-by-Fraud
In this Essay, Professor Patricia J. Falk argues that Professor Jed Rubenfeld’s solution to the “riddle of rape-by-deception” goes too far in eviscerating the body of rape law that courts and legislatures have developed over the past decades. Falk suggests that eliminating nonconsent and foregrounding force is a mistake, and that it is instead critical to think more robustly about what meaningful consent and sexual autonomy might require.
Rape-by-Deception—A Response
In this Essay, Professor Jed Rubenfeld responds to commentary on The Riddle of Rape-by-Deception and the Myth of Sexual Autonomy, published in Volume 122 of the Yale Law Journal. Engaging with four different interlocutors, he suggests that sex-by-deception remains a serious puzzle in rape law, and that self-possession offers an especially promising means of rethinking rape law to address it.
Sex Without Consent
Modern rape law lacks a governing principle. In The Riddle of Rape-by-Deception and the Myth of Sexual Autonomy, Jed Rubenfeld contends that the most obvious candidate—sexual autonomy—is inadequate. I agree, though for vastly different reasons. Rubenfeld advances a conception of rape as a violation of a right to self-possession; this approach raises real problems. I introduce an alternative understanding of rape—rape as a violation of sexual agency. Theories of agency expressly contemplate its exercise under constraints. This framework thus can account for both women’s sexual violation and the value of women’s sexual subjectivity. The turn to agency provides new justification for defining rape as sex without consent.
The Riddle of Rape-by-Deception and the Myth of Sexual Autonomy
122 Yale L.J. 1372 (2013). “Rape-by-deception” is almost universally rejected in American criminal law. But if rape is sex without the victim’s consent—as many courts, state statutes, and scholars say it is—then sex-by-deception ought to be rape, because as courts have held for a hundred years in virtually every area of the law outside of rape, a consent procured through deception is no consent at all. Moreover, rejecting rape-by-deception fails to vindicate sexual autonomy, which is widely viewed today as rape law’s central principle and, indeed, as a constitutional right. This Article argues against the idea of sexual autonomy and against the understanding of rape as unconsented-to sex. A better understanding, it is argued, can be arrived at by comparing rape to slavery and torture, which are violations of a person’s fundamental right to self-possession. This view of rape can explain the rejection of rape-by-deception, which current thinking cannot, but it will also suggest that rape law’s much-maligned force requirement may not be so malign after all.
The Myth of Prosecutorial Accountability After Connick v. Thompson: Why Existing Professional Responsibility Measures Cannot Protect Against Prosecutorial Misconduct
This Essay takes the Supreme Court’s recent decision in Connick v. Thompson as a point of departure for examining the efficacy of professional responsibility measures in combating prosecutorial misconduct. John Thompson, the plaintiff in Connick, spent fourteen years on death row because prosecutors concealed exculpatory blood evidence from his defense attorneys. In rejecting Thompson’s attempt to hold the New Orleans District Attorney’s Office civilly liable for failing to train its prosecutors in proper discovery procedures, the Connick Court substantially narrowed one of the few remaining avenues for deterring prosecutorial misconduct. Implicit in the Court’s reasoning was a belief that district attorneys' offices should be entitled to reasonably rely on professional responsibility measures to prevent prosecutorial misconduct. This Essay subjects that premise to a searching critique by surveying all fifty states’ lawyer disciplinary practices. Our study demonstrates that professional responsibility measures as they are currently composed do a poor job of policing prosecutorial misconduct. However, we also take seriously the Supreme Court’s insistence that those measures should function as the primary means of deterring misconduct. Accordingly, in addition to noting the deficiencies of professional responsibility measures, we offer a series of recommendations for enhancing their effectiveness.
The “Other” Side of Richardson v. Ramirez: A Textual Challenge to Felon Disenfranchisement
121 Yale L.J. 194 (2011). Section 2 of the Fourteenth Amendment allows states to disenfranchise citizens on account of “rebellion, or other crime” without reducing the size of the state’s delegation in the House of Representatives. In its 1974 decision in Richardson v. Ramirez, the Supreme Court held that this language in the Fourteenth Amendment (the so-called Penalty Clause) provides an “affirmative sanction” for at least some forms of felon disenfranchisement. Although lower courts have construed the Ramirez Court's constitutional approval for felon disenfranchisement broadly, this Note argues that Ramirez authorizes felon disenfranchisement only in a narrow set of circumstances. Whereas other commentators have called for the overruling of Ramirez and for nontextualist interpretations of the Penalty Clause, this Note works within the confines of the Ramirez decision and follows the Court’s command that “language [in the Penalty Clause] was intended . . . to mean what it says.” The Clause’s “other crime” construction follows a syntactical pattern found in three other constitutional clauses, and a close examination of the repeated use of this construction reveals that the scope and meaning of “crime” is framed by the leading examples or categories that precede it. The constitutionality of disenfranchisement is limited by this relationship and should be reexamined.
Rethinking Criminal Law and Family Status
119 Yale L.J. 1864 (2010). In our recent book, Privilege or Punish: Criminal Justice and the Challenge of Family Ties, we examined and critiqued a number of ways in which the criminal justice system uses family status to distribute benefits or burdens to defendants. In their essays, Professors Alafair Burke, Alice Ristroph, and Melissa Murray identify a series of concerns with the framework we offer policymakers to analyze these family ties benefits or burdens. We think it worthwhile not only to clarify where those challenges rest on misunderstandings or confusions about the central features of our views, but also to show the deficiencies of the proposed alternatives. While we appreciate and admire the efforts of our critics to advance this important conversation, we hope this Essay will illuminate why the normative framework of Privilege or Punish remains a more helpful structure to policymakers assessing how family status should intersect with the criminal law within a liberal democracy such as our own.
Peace Through Complementarity: Solving the Ex Post Problem in International Criminal Court Prosecutions
119 Yale L.J. 1703 (2010).
When Family Matters
In Privilege or Punish: Criminal Justice and the Challenge of Family Ties, Dan Markel, Jennifer Collins, and Ethan Leib make an important contribution to the growing literature on criminal law and families by documenting the ways that criminal law advantages and burdens actors based on familial status and identifying the potential harms that are unleashed when criminal law recognizes family status. This Feature seeks to complement that contribution by situating the authors’ observations within the context of two considerations beyond Privilege or Punish’s immediate focus: chronological trends and the practical realities that can shape application of formal law. By distinguishing criminal law’s traditions from contemporary trends, the Feature identifies both a gradual de-emphasis of legally recognized family forms and an increased willingness to enforce criminal law within families, regardless of how they are comprised. It concludes by arguing that effective enforcement of criminal law within families often requires the criminal justice system to yield to family relationships, not for the purpose of promoting preferred family forms, but to serve the criminal law’s familiar retributive and utilitarian goals.
Gangs in the Military
118 Yale L.J. 696 (2009). Gang activity in the U.S. military is increasing. Gang members undermine good order and discipline in the armed services and pose a serious threat to military and civilian communities. Congress recently responded to this threat by directing the Secretary of Defense to promulgate regulations forbidding the active participation of service personnel in criminal street gangs. This Note reviews the threat posed by military gangs and analyzes existing military policies addressing gang affiliation. This Note concludes with recommendations for the military to consider when it drafts the new regulations demanded by Congress.
The Sentence Imposed Versus the Statutory Maximum: Repairing the Armed Career Criminal Act
118 Yale L.J. 369 (2008).
Undermining Excessive Privacy for Police: Citizen Tape Recording To Check Police Officers' Power
117 Yale L.J. 1549 (2008).
Federal Sentencing in 2007: The Center Holds—The Supreme Court Doesn't
117 Yale L.J. 1374 (2008). This essay takes stock of federal sentencing after 2007, the year of the periphery. On Capitol Hill, Attorney General Alberto Gonzales resigned in the face of widespread criticism over his role in the replacement of several U.S. Attorneys. In the Supreme Court, the trio of Rita v. United States, Gall v. United States, and Kimbrough v. United States clarified and perhaps extended the breadth of license given to district judges in an advisory guideline regime. In contrast to the Supreme Court’s sentencing cases, which focus on the allocation of authority between judges and juries, and the bulk of the sentencing literature, which pits prosecutors against judges, the institutional pairing highlighted here is Main Justice versus the districts, with Department of Justice (DOJ) sentencing policies since 2001 considered in the larger context of DOJ efforts to exercise power over U.S. Attorneys’ offices. What has often been framed as “judicial discretion” might better be seen as a coordinated exercise in local norm setting—an exercise in which line prosecutors, through charging power and shared control over investments in information gathering (in tandem with agencies) inevitably play a critical role. The extent to which prosecutors will be allowed to explicitly embrace the power they tacitly exercise already, and whether an illusory regime of sentencing uniformity will give way to a real one of collaborative norm articulation and development, remains to be seen. But the suggestion here is that the new sentencing cases may point the way to a healthier federal criminal justice system.
The Arc of the Pendulum: Judges, Prosecutors, and the Exercise of Discretion
117 Yale L.J. 1420 (2008). Early scholarship on the Federal Sentencing Guidelines focused on the transfer of sentencing authority from judges to the Sentencing Commission; later studies examined the transfer of discretion from judges to prosecutors. Of equal significance are two other institutional competitions for power: one between local federal prosecutors and officials in the Department of Justice in Washington (“Main Justice”), and the other between Congress and the Supreme Court. Congress’s enactment of the Feeney Amendment in 2003, in reaction to sentencing data and decisions appearing to reveal that sentencing judges were willfully ignoring the Guidelines, represented a direct challenge to every level of the federal judiciary, to the Sentencing Commission, and to front-line federal prosecutors. By design, this legislation simultaneously empowered Main Justice, which was Congress’s partner in the endeavor to achieve nationwide “compliance” with the Sentencing Guidelines. In its 2005 decision in United States v. Booker, the Supreme Court undid the Feeney Amendment, introduced the opportunity for judges openly to exercise judgment independent of the Guidelines, constrained the leverage that inheres in prosecutors in a mandatory sentencing regime, and counteracted the centralizing impulse of Main Justice. The Court’s recent decisions elaborating Booker confirm that, once again, sentencing is to a significant extent a “local” event. The Sentencing Commission and Main Justice may still be calling signals but the decision makers on the playing field—judges and prosecutors—need not follow them. The pendulum of sentencing practice may increasingly swing back toward the exercise of informed discretion as newly appointed local decision makers are able to see beyond the narrow and arbitrary “frame” of the Federal Sentencing Guidelines.
Justifications, Power, and Authority
117 Yale L.J. 1070 (2008). Criminal law theory made a significant advance roughly thirty years ago when George Fletcher popularized the important conceptual distinction between justifications and excuses. In the intervening years, however, very little progress has been made in exploring the structure and function of justification defenses. The reason for this failure, I suggest, is a widely shared misconception about their place within the criminal law’s institutional structure. Contrary to what is generally believed, it is not up to trial courts to decide ex post facto what conduct is justified and what is not. This determination is made ex ante by other institutional actors such as private fiduciaries, public officials, and sometimes, ordinary citizens caught in extraordinary circumstances. The court’s role is simply to review the validity of that prior exercise of decision-making discretion. More broadly, my study is intended to serve as a reminder of the importance of institutional structure in criminal law. It is almost always misleading to address issues in criminal law by way of abstract moral theorizing, as is often done, because this leaves out the crucial question of institutional division of labor. Before addressing the substantive aspect of particular questions—what conduct should be prohibited, justified, or excused—we must first address ourselves to the institutional questions that I have called the problems of authority, discretion, and legality. These institutional questions receive their most thorough treatment in two other areas of law: the private law of fiduciaries and public administrative law. If we wish to make progress in understanding justification defenses—and the institutional structure of criminal law more generally—I argue that it is to these areas of law that we should attend.
The Case Against Automatic Reversal of Structural Errors
117 Yale L.J. 1180 (2008). This Note describes the case law governing three structural errors and shows that the rule of automatic reversal has led appellate courts to narrow the scope of the rights at issue. To avoid this effect, the Note proposes a new framework for determining whether a given type of error is “structural” and thus requires automatic reversal. The rule of automatic reversal should apply only to types of error that never contribute to a verdict.
Seeking More Scienter: The Effect of False Claims Act Interpretations
117 Yale L.J. 981 (2008).
On Target? The Israeli Supreme Court and the Expansion of Targeted Killings
116 Yale L.J. 1873 (2007).