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 of an in-depth investigation of 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 published in the Yale Law Journal, 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 leave over 90% of rapists in America unpunished. By replacing the non-consent element with a very narrow force requirement, Rubenfeld’s recommendation essentially decriminalizes acquaintance rape and rape by a victim’s intoxication.
In this Article, I discuss the missteps Rubenfeld makes to explain why he ends up supporting such a disastrous conclusion. For example, Rubenfeld sees the need for his 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 foundational values of rape law (autonomy, gender, harm, and terror), the major problems of high rape prevalence and law enforcement failures that plague America can be better addressed.