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May 14 2014

Force vs. Nonconsent: The Fight to Redefine Sexual Assault

[Content note: sexual assault]

My piece at the Daily Dot today is about efforts to legally define sexual assault.

Like all laws, the legal definitions of crimes have changed throughout history in response to social, cultural, scientific, and political forces.Sexual assault especially is a crime that depends on social consensus for its definition. After all, while killing another person isn’t always considered “murder,” most of us at least agree on what it means to kill a person. Not so with sexual assault.

Feminist activists have been fighting for decades to expand and improve that definition, from including marital rape to deemphasizing vaginal penetration as a criterion. (Yes, people without vaginas can be raped.) They have also urged state legislatures to rewrite laws so that rape does not have to be “forceful” to count. After all, what matters isn’t whether or not force was used, but whether or not consent was given.

Yale law professor Jed Rubenfeld, however, wants definitions of rape to re-emphasize force. The reason, he claims, is that using consent (or lack thereof) as the basis upon which rape is defined leaves room for all sorts of ethical quandaries.

For instance, if someone falsifies their identity in some way to convince someone to have sex with them, then that person did not technically give informed consent, and could consider the act rape even though they appeared to fully consent to it. If we criminalize non-consensual sex, how could we not also criminalize sex under false pretenses?

Rubenfeld does include the caveat that the definition of force should be broadened. He says, “I’m in favor of an expanded force requirement, an understanding that sees force in threats, in drugging, in physical restraint (holding the victim down, locking the victim up), and so on.”

But even then, many (if not most) sexual assaults do not involve any of these things. Nor should they have to in order to be considered sexual assault.

Read the rest here.

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4 comments

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  1. 1
    Azkyroth Drinked the Grammar Too :)

    If we criminalize non-consensual sex, how could we not also criminalize sex under false pretenses?

    ….does he offer an argument for why we shouldn’t?

    1. 1.1
      Miri, Professional Fun-Ruiner

      I don’t think so. I didn’t have space to get into this here (Daily Dot had word limits), but there are plenty of good reasons to treat it as such.

    2. 1.2
      Jacob Schmidt

      For that matter, does he have a better argument than that? If the best argument he can offer is, “Sex under false pretences would be illegal,” then the laws, and principles behind them, are miles ahead of most laws we currently have.

      This is his abstract:

      “Rape-by-deception” is almost universally rejected in American criminal law. But if rape is sex without the victim’s 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’s 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’s 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’s much-maligned force requirement may not be so malign after all.

      He’s got a 72 page article, for those who are interested.

      I can see an argument for separating cases where the victim did not consent to sex, and cases where the victim consented to sex on certain conditions that were not met. The latter might be better prosecuted under fraud; I really don’t know.

      1. 1.2.1
        nrdo

        It seems logical that it would be easier to carve out a new category for the (presumably rare/non-violent) crime of obtaining consent through outright deception than attempting to expand the definition of force to encompass all of the possible physical and mental pressures that rapists use.

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