Sex Without Consent

Abstract

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.

Keywords: rape, consent, sexual agency