Solving the Riddle of Rape-by-Deception

Abstract

Is sex obtained by lies an act of lawful seduction or criminal rape? This deceptively simple question has baffled courts and scholars for more than a century. In an influential recent article, Yale Law Professor Jed Rubenfeld argued that our ambivalence towards this question generates what he called the “riddle of rape-by-deception”. The riddle is that if rape is defined as having sex without consent, then rape statutes should prohibit sex by deception just as much as they prohibit sex by force. Yet they don’t. So either rape statutes are guilty of a huge, inexplicable oversight or rape law is about something other than sex without consent.

This Article shows that the riddle of rape by deception is based on a misunderstanding of the kind of consent that lies at the heart of modern rape reform statutes. Properly understood, the chief goal of contemporary rape laws is to neutralize the coercion that is inherent in sexual relationships that take place in a male dominated society. Since minimizing deception is only tangentially related to this goal, respect for the kind of autonomy that rape law is primarily designed to protect is compatible with a kind of consent that only selectively prohibits deception. This solution to the riddle of rape by deception not only preserves the conceptual framework that undergirds modern rape statutes, but also sharpens our understanding of the interests that contemporary rape reform is designed to protect.

Keywords: rape-by-deception, rape, feminism, autonomy, consent, Jed Rubenfeld