The Riddle of Rape-by-Deception and the Myth of Sexual Autonomy

Rape-by-deception is almost universally rejected in American criminal law. But if rape is sex without the victim\u27s consent-as many courts, state statutes, and scholars say it is-then sex-by-deception ought to be rape, because as courts have held for a hundred years in virtually every area of the law outside of rape, a consent procured through deception is no consent at all. Moreover, rejecting rape-by-deception fails to vindicate sexual autonomy, which is widely viewed today as rape law\u27s central principle and, indeed, as a constitutional right. This Article argues against the idea of sexual autonomy and against the understanding of rape as unconsented-to sex. A better understanding, it is argued, can be arrived at by comparing rape to slavery and torture, which are violations of a person\u27s fundamental right to self-possession. This view of rape can explain the rejection of rape-by-deception, which current thinking cannot, but it will also suggest that rape law\u27s much-maligned force requirement may not be so malign after all