Against Sexual Autonomy: Why Sex Law’s Lodestar Should Be Self-​Possession

Most of us would say no—after all, all’s fair in love and war, right? This woman agreed to sex with this man, and whether he’s homeless or the king of Bhutan shouldn’t make much difference, legally speaking. Rape is currently understood as sex without the victim’s consent, and she consented…or didn’t she? For hundreds of years, and in most other areas of law, consent procured through deception is not considered consent at all. If a fraudster pretends to be with a utility company and, believing such, you let them into your home, the person has still committed trespass.

The issue of “rape-​by-​deception” isn’t simply a fun little philosophical exercise. In November, New Jersey Assemblyman Troy Singleton (D-​Burlington) introduced a bill to criminalize “sexual assault by fraud”. Several states already have similar laws on the books (Tennessee, Idaho), or have tried to pass similar laws (Massachusetts). In 2010, Israel convicted an Arab man of rape for lying to a woman he slept with about being Jewish. In 2013, the U.K. sentenced 17-​year-​old Justine McNally to prison for three years after McNally “deceived” a lover into thinking she was a boy; McNally served 82 days before an appeals court lessened her sentence.

In U.S. courts, rape-​by-​deception claims haven’t historically fared well. “ ‘Rape-​by-​deception’ is almost universally rejected in American criminal law,” noted Yale University law professor Jed Rubenfeld in a 2013 article, “The Riddle of Rape-​by-​Deception and the Myth of Sexual Autonomy.” Yet under our current conception of rape—and, by extension, rape law—we ought to count rape-​by-​deception as rape and the courts ought to hold so, Rubenfeld writes. Consistency requires it.

Perhaps, then, our current philosophical and legal understanding of rape is the problem?

Once upon a time, the rationale behind British and American rape law was to safeguard women’s “purity”. Rape was a crime because it resulted in “the destruction of female innocence,” as the Supreme Court of Georgia put it in 1860. Under this logic, it makes sense why men were legally considered unable to be raped, or why a married woman was considered unrapeable by her husband.

Thankfully, morality and defilement are no longer central concerns of rape law. Arguably, the foundational principle of not just rape law but most sex-​related jurisprudence in America today turns on the concept of sexual autonomy.

Put broadly, sexual autonomy means someone’s prerogative to determine when, with whom, and under what circumstances they engage in sexual activity; to only engage in sexual activity to which they consent. In Coker v. Georgia (1977)—a case holding it unconstitutional to sentence someone to the death penalty for rape—the U.S. Supreme Court articulated why rape is criminalized thusly: it violates an individual’s “privilege of choosing those with whom intimate relationships are to be established”—i.e., their sexual autonomy.

“Rape law has been for decades a body of law in search of a principle, but has now seemingly found that principle in sexual autonomy,” writes Rubenfeld. There’s just one little conceptual problem: sex-​by-​deception. If fraud negates consent as it does in other areas of criminal law, than sex-​by-​deception is unconsented to sex… also known as rape. “By failing to criminalize rape-​by-​deception,” argues Rubenfeld, “sex law fails to vindicate sexual autonomy.”

Could sexual autonomy-​based rape law be the issue? And, if so, what are we left with? Certainly few wish to return to a female deflowerment-​based conception of rape. In many places, rape is still legally defined not as ‘sex without consent’ but ‘forcible sex without consent’, but this too is a conception and policy that’s trending out. Is there any legally and logically consistent way to criminalize rape without making all sorts of minimally coercive or fraud-​induced sex a crime?

Rubenfeld thinks he’s found the answer in self-​possession. “A difference exists between an autonomy right to engage in an activity if, as, or when you please, and a right not to have that activity affirmatively pressed on your against your will,” he writes (thick versus thin autonomy). One might say that rape law turns on the latter, the right not to have an activity forced on you. But we don’t acknowledge a universal right against being forced into activities or behaviors—most people feel no qualms about forcing people to pay taxes, or wear seatbelts, or refrain from smoking indoors (at the threat of criminal penalties); nor do we consider it universally unconscionable to touch someone in a way they don’t consent to. Rape’s particularly egregious violation is one of self-​possession. It’s not just a matter of overriding consent but bodily autonomy.

Bodily self-​possession is crucial to selfhood. “You lose self-​possession not when another person merely wounds, embarrasses, or constrains you but when the other person actually takes over your body—exercising such complete and invasive physical control over it that your body is in an elemental sense no longer your own,” writes Rubenfeld. Torture and slavery are both considered crimes against self-​possession, and to this list Rubenfeld would add rape.

Conceiving of rape as a violation of self-​possession would explain why rape is treated differently than other forms of assault, without resorting to antiquated conceptions of virtue and purity. To rape someone is, however briefly, to take over their body and make it a tool of your will entirely, to rob them of self possession in a way that doesn’t occur via simple assault—or via sex-​by-​deception. Someone who willingly has sex with a lover who turns out not to be what they seem was not, during the act, stripped of their bodily autonomy. The deception, once known, may render consent meaningless, or at least imperfect, but it does not retroactively negate their self-​possession during the sexual act.

To victims of sexual assault, there’s surely little distinction whether theirs is a violation of consent or self-​possession, sexual autonomy or bodily autonomy. But as rape and rape law increasingly become topics of conversation, debate, and revision, it may be helpful to consider how we got here and precisely what it is we stand against.