Sex and Guilt

Abstract

The contemporary critique of rape law proceeds from the premise that heterosexual intercourse is and should be lawful activity, and it assumes that the purpose of rape doctrine is to protect women's authority to choose the conditions under which they will engage in such activity. Viewed from that perspective, rape doctrine is perverse, since the primary elements of the offense appear calculated to restrain, rather than enhance, women's exercise of sexual autonomy. The paper attempts to reconceptualize rape doctrine by taking seriously some of the ways of thinking about sexuality that, we may imagine, shaped the offense in prior eras. One prominent feature of the system from which we inherited rape law was its determination to punish not only rape, but also forms of consensual heterosexual intercourse, including fornication and adultery. Contrary to the political assumptions animating the contemporary critique of rape law, therefore, influential institutions within that former system condemned the exercise of sexual agency by both women and men. Since an essential ingredient of the traditional rape offense was that the intercourse "be unlawful," -- i.e., that it be fornication or adultery -- any woman who complained of rape necessarily was conceding that she had participated in that unlawful act. Law enforcement officials presumably would be inclined to punish her for that offense unless she could establish a defense to criminal liability. Viewed from this perspective, the elements of rape are better understood as the criteria that excuse the woman for having engaged in illegal intercourse than they are as the ingredients of the man's offense. Curiously, when we acknowledge the longstanding and explicit connection our culture has made between heterosexual intercourse and criminal guilt, we produce a description of rape law that incorporates a prescription for thorough doctrinal reform. If we now are prepared to agree that fornication and adultery no longer should be criminalized, there appears to be no justification for adhering to a definition of rape that treats the rapist's victim as if she were a lawbreaker who must plead for an excuse from criminal liability.