Skip to main content

Advertisement

SpringerLink
Log in

How to Think (Like a Lawyer) About Rape

  • Original Paper
  • Published:
Criminal Law and Philosophy Aims and scope Submit manuscript

Abstract

From the American Law Institute to college campuses, there is a renewed interest in the law of rape. Law school faculty, however, may be reluctant to teach this deeply debated topic. This article begins from the premise that controversial and contested questions can be best resolved when participants understand the conceptual architecture that surrounds and delineates the normative questions. This allows participants to talk to one another instead of past each other. Accordingly, in this article, we begin by diffusing two non-debates: the apparent conflict created when speakers use “consent” to mean two different things and the question of whether rape law ought to be formulated in terms of consent or force. From here, we turn to the conceptual apparatuses that surround the normative questions of freedom from force, knowledge, and capacity. Here, we suggest how better understanding these concepts can frame the underlying discussions as to what sorts of coercion undermine consent, what kinds of deception invalidate consent, and when the victim is too incapacitated to consent. Finally, we turn to different formulations of consent, demonstrating that one conception better captures the harm of rape but that other formulations may better protect victims. We show how clarifying these questions allows discussants to see why different formulations are valuable and to debate the best all-things-considered formulation. Although this article is framed as a question of how (to teach students) to think like lawyers about rape, its ambition is to set forth a framework that is useful to reformers as well.

This is a preview of subscription content, log in via an institution to check access.

Access this article

Log in via an institution

Price excludes VAT (USA)
Tax calculation will be finalised during checkout.

Instant access to the full article PDF.

Institutional subscriptions

Similar content being viewed by others

Notes

  1. Jeannie Suk, “The Trouble with Teaching Rape Law,” The New Yorker, News Desk, December 15, 2014.

  2. As Laura Kipnis articulates the faculty worry:

    The reality is that the more colleges devote themselves to creating “safe spaces”—that new watchword—for students, the more dangerous those campuses become for professors. It’s astounding how aggressive students’ assertions of vulnerability have gotten in the past few years. Emotional discomfort is regarded as equivalent to material injury, and all injuries have to be remediated.

    Most academics I know—this includes feminists, progressives, minorities, and those who identify as gay or queer—now live in fear of some classroom incident spiraling into professional disaster. After the essay appeared, I was deluged with emails from professors applauding what I’d written because they were too frightened to say such things publicly themselves. My inbox became a clearinghouse for reports about student accusations and sensitivities, and the collective terror of sparking them, especially when it comes to the dreaded subject of trigger warnings, since pretty much anything might be a “trigger” to someone, given the new climate of emotional peril on campuses.

    Laura Kipnis, “My Title IX Inquisition,” The Chronicle of Higher Education, May 29, 2015.

  3. Susan Estrich, “Teaching Rape Law,” Yale Law Journal 102(2) (1992): pp. 509–520, p. 515.

  4. See https://www.ali.org/projects/show/sexual-assault-and-related-offenses/.

  5. Jake New, “The ‘Yes Means Yes’ World,” Slate, October 17, 2014.

  6. Peter Westen, The Logic of Consent: The Diversity and Deceptiveness of Consent as a Defense to Criminal Conduct (Aldershot: Ashgate, 2004); Kimberly Kessler Ferzan, “Consent, Culpability, and the Law of Rape,” (forthcoming, Ohio State Journal of Criminal Law); Kimberly Kessler Ferzan, “Sex as Contract,” in Paul H. Robinson, Stephen P. Garvey, and Kimberly Kessler Ferzan (eds.), Criminal Law Conversations 308 (New York: Oxford University Press, 2009).

  7. Michelle Oberman, “Getting Past Legal Analysis … Or How I Learned to Stop Worrying and Love Teaching Rape,” Creighton Law Review 45(4) (2012): pp. 799–825; Mary Heath, “Encounters with the Volcano: Strategies for Emotional Management in Teaching the Law of Rape,” The Law Teacher 39(2) (2005): pp. 129–149; Kevin C. McMunigal, “Reducing the Risks and Realizing the Rewards: An Approach to Teaching Rape Law,” San Diego Law Review 34 (1997): pp. 519–540; Kate E. Bloch, “A Rape Law Pedagogy,” Yale Journal of Law and Feminism 7(2) (1995): pp. 307–340; Estrich, “Teaching Rape Law”; James J. Tomkovicz, “On Teaching Rape: Reasons, Risks, and Rewards,” Yale Law Journal 102(2) (1992): pp. 481–508.

  8. One of us (Ferzan) defines a “safe space” to her students as “one in which students speak respectfully and listen charitably.” Neither of us endorses the idea that a safe space is one in which students are not presented with ideas that make them at all uncomfortable. See Greg Lukianoff and Jonathan Haidt, “The Coddling of the American Mind,” The Atlantic, September 2015.

  9. For instance, Princeton University equivocates on the meaning of “consent” within its one-paragraph definition:

    In reviewing possible violations of sexual misconduct, the University considers consent as the voluntary, informed, un-coerced agreement through words and actions freely given, which a reasonable person would interpret as a willingness to participate in mutually agreed-upon sexual acts. Consensual sexual activity happens when each partner willingly and affirmatively chooses to participate.

    Princeton University, Rights, Rules and Responsibilities, section 1.3.3 (4). Available at: http://www.princeton.edu/pub/rrr/part1/index.xml#comp13.

    The first and second sentences set forth very different standards for affirmative consent. The first sentence turns on a reasonable person standard, and the second turns on what the victim subjectively chooses.

  10. State v. Rusk, 424 A.2d 720 (Md. App. 1981); Commonwealth v. Berkowitz, 609 A.2d 1338 (Pa. App. 1992); In re M.T.S., 609 A.2d 1266 (N.J. 1992).

  11. Peter Westen, “Rape,” available upon request and free of charge.

  12. We say that assent is “typically” necessary because assent is not necessary in cases where consent is imputed, for instance, the marital rape exemption.

  13. c. C-34 Revised Statutes of Canada s. 143 (1970); Cf. 13A Code of Ala. s. 6-65(a)(1) (Lexis Advance through 2016 Sess.) (“A person commits the crime of sexual assault if [b]eing a male, he engages in sexual intercourse with a female without her consent … or with her consent where consent was obtained by the use of any fraud or artifice”).

  14. Although we will often refer to the defendant as male and the victim as female, this is not to imply that we endorse a heteronormative approach to rape. The “Sleepover” case, Guam v. Tenorio, 2007 Guam LEXIS 24 (2007), is included in the rape casebook materials, Westen, “Rape,” and discussed below. Nevertheless, some of the concerns that motivate rape reformers are directly responsive to concerns about gender norms and power. And, in this instance, the Canadian statute was itself gendered.

  15. 11 Del. Code Ann. s. 772(a)(1) (Lexis Advance through 80 Del. Laws, Chapter 265).

  16. 11 Del. Code Ann. s. 761(j) (Lexis Advance through 80 Del. Laws, Chapter 265).

  17. Cf. Model Penal Code s. 2.11(3) (“assent does not constitute consent if [the victim did not operate under sufficient freedom, capacity, and knowledge]”).

  18. See, e.g., 18 Colo. Rev. Stat. s. 3-401 (Lexis Advance through 2015 Sess.) (submission); Weatherford v. State, 369 So.2d 863, 872 (Ala. Crim. App., 1979) (acquiescence); Wilson v. State, 655 P.2d 1246, 1257 (Wyo. 1982) (acquiescence). Cf. 38 Mo. Rev. Stat. s. 556.061(5)(c) (2015) (assent).

  19. For discussion about whether assent extends to attitudes or acts of indifference, see Westen, The Logic of Consent, pp. 28, 30, 53.

  20. The underlying question of what counts as “assent” that eliminates the harm of rape is contested. See Larry Alexander, “The Ontology of Consent,” Analytic Philosophy 55(1) (2014): pp. 102–113, pp. 107–109 (discussing intention, acquiescence, and other mental state formulations). But, once that is settled on, the question of whether this type of assent existed is wholly factual.

  21. For an analysis of the two-step process, see Westen, The Logic of Consent, pp. 25–63.

  22. 1995 Tenn. Crim. App. LEXIS 40 (1995).

  23. [2007] EWCA 804.

  24. 825 P.2d 571 (Nev. 1992).

  25. [1991] VR 339.

  26. Commonwealth v. Cordeiro, 519 N.E.2d 1328 (Mass. 1988); Jeannie Greeley, “The 30 Most Memorable Cases of the Last 30 Years: The Big Dan’s Case,” Massachusetts Lawyers Weekly, September 16, 2002; Jay Pateak, “Brothers break silence in Big Dan’s rape case,” Herald News, October 25, 2009; “Four Convicted in Mass. Barroom Rape,” Facts on File World News Digest, March 30, 1984: p. 230; Dudley Clendinen, “Barroom Rape Shames Town of Proud Heritage,” New York Times, March 17, 1983; “The Tavern Rape,” Newsweek, March 21, 1983: p. 25.

  27. 2007 Guam LEXIS 24.

  28. That said, there is still a question of what constitutes “assent.” See Alexander, “The Ontology of Consent.” For now, we only wish to clarify how breaking consent into two steps enables normative discussions.

  29. See Anne Coughlin, “Sex and Guilt,” Virginia Law Review 84(1) (1998): pp. 1–46.

  30. 994 A.2d 765 (D.C. App. 2010).

  31. It is commonly said that, in order a man be convicted of rape by force, a woman has to resist to the utmost, even to the point of death. See, e.g., Joan McGregor, “Why When She Says No She Doesn't Mean Maybe and Doesn't Mean Yes,” Legal Theory 2(3) (1996): pp. 175–208, pp. 175–177; Robin West, “A Comment on Consent, Sex, and Rape,” Legal Theory 2(3) (1996): pp. 233–251, p. 237. This is not now, and never has been, the case. See Peter Westen, “Common Confusions about Consent in Rape Cases,” Ohio State Journal of Criminal Law 2 (2004): pp. 333–359, pp. 349–354. We discuss this confusion below in Section 3.1.3.

  32. Compare Kaliku and Matthews, 994 A.2d at 771 (sentencing Kaliku and Matthews to life imprisonment for aggravated rape under 22 D.C. Code s. 3002 (a)(1) and (2) (Lexis Advance through June 16, 2016)), and 22 D.C. Code s. 3020 (a)(4) and (6) (Lexis Advance through June 16, 2016), with State v. Shropshire, 1995 Tenn. Crim. App. LEXIS 40 (1995) (sentencing Claude Shropshire to eight years in prison for simple rape under 39 Tenn. Code Ann. s. 13-503 (Lexis Advance through the 2015 Sess.)) rather than aggravated rape under 39 Tenn. Code Ann. s. 13-502 (Lexis Advance through the 2015 Sess.).

  33. Westen, The Logic of Consent, pp. 1–2.

  34. Jed Rubenfeld, “The Riddle of Rape-by-Deception and the Myth of Sexual Autonomy,” Yale Law Journal 122(6) (2013): pp. 1372–1443, p. 1441.

  35. See, e.g., Michal Buchhandler-Raphael, “The Failure of Consent: Re-Conceptualizing Rape as Sexual Abuse of Power,” Michigan Journal of Gender and Law 18(1) (2011): pp. 148–228, p. 154; Robin West, “Legitimating the Illegitimate: A Comment on ‘Beyond Rape,’” Columbia Law Review 93 (1993): pp. 1442–1459, p. 1459.

  36. Rubenfeld would confine the crime of rape to persons who use physical violence against unwilling victims. See Rubenfeld, “The Riddle of Rape-by-Deception and the Myth of Sexual Autonomy.” As a result, he would eliminate entire categories of criminal conduct from existing rape statutes, including sexual intercourse (i) with underage minors, (ii) with persons who are unconscious, (iii) with persons who are mentally ill, (iv) by means of coercion other than threats of physical violence, e.g., threats to make public nude pictures, (v) by fraud in the factum, e.g., fake gynecological exams, (vi) by fraud in the inducement, e.g., impersonations of a spouse, (vii) with persons in an actor’s custody, e.g., prison guards from inmates, (viii) with persons in an actor’s care, e.g., clergymen from parishioners, and (ix) in the face of a verbal “No.”

  37. See Catharine MacKinnon, “A Sex Equality Approach to Sexual Assault,” Annals of the New York Academy of Sciences 989 (2003): pp. 265–275; Catharine MacKinnon, Toward a Feminist Theory of the State (Cambridge: Harvard University Press, 1989), p. 245 (arguing that “rape should be defined as sex by compulsion, of which physical force is one form”); Catharine MacKinnon, “Feminism, Marxism, Method of the State,” Signs 8(4) (1983): pp. 635–658, pp. 650–655.

  38. See William Blackstone, Commentaries on the Laws of England, Book Four (Oxford: Clarendon Press, 1769), p. 210 (defining rape of non-minors as “carnal knowledge of a woman forcibly and against her will”). Georgia is the only state that still adheres to Blackstone’s definition of rape. See 16 Ga. Code Ann. s. 6-1 (Lexis Advance through the 2015 Sess.).

  39. Mich. Comp. Laws Serv. s. 750.520b, 750.520d (Lexis Advance through 2016 Public Act 184 (excluding Public Acts 181 and 183)).

  40. See, e.g., People v. Borak, 13 Ill. App. 3d 815 (1973) (a physician who subjects a patient to sexual intercourse by falsely pretending that it is a non-sexual gynecological exam is guilty of sexual intercourse by means of “force”); North Carolina v. Moorman, 358 S.E.2d 502 (N.C. 1987) (a man who has sexual intercourse with a woman who is asleep is guilty of rape by “force”).

  41. E.g., Buchhandler-Raphael, “The Failure of Consent: Re-Conceptualizing Rape as Sexual Abuse of Power,” p. 150.

  42. See 45 Mont. Code s. 5-503, 5-501(1)(a)(ii)(E) (Lexis Advance through 2015 Legis. Sess.) (“‘without consent’ means … the victim is incapable of consent because the victim is incarcerated in an … adult … detention … facility … and the perpetrator is an employee … of the supervisory authority and has supervisory or disciplinary authority over the victim”).

  43. Mich. Comp. Laws Serv. s. 750.520b, 750.520d (Lexis Advance through 2016 Public Act 184 (excluding Public Acts 181 and 183)).

  44. See, e.g., Catharine MacKinnon, Sex Equality: Rape Law (St. Paul: Foundation Press, 2001), p. 818.

  45. The Model Penal Code would make such conduct criminal, see Model Penal Code and Commentaries s. 213.1, p. 312, and some jurisdiction do. See, e.g., State v. Hanson, 514 N.W.2d 600, 603 (Minn. App. 1994). However, the great majority of jurisdictions do not make them a crime. See Buchhandler-Raphael, “The Failure of Consent: Re-Conceptualizing Rape as Sexual Abuse of Power,” p. 167.

  46. Cf. CrimC (Jer) 561/08 State of Israel v. Kashur (July 19, 2010), Nevo Legal Database (by subscription), para. 13, 15 (a married Israeli Arab with young children is guilty of rape for eliciting sexual intercourse from an Israeli Jewish woman who was single by falsely presenting himself as a Jewish bachelor) with Tom Dougherty, “Sex, Lies and Consent,” Ethics 123(4) (2013): pp. 717–744, p. 729 (whether lies about ethnicity taint consent to sex is “controversial”).

  47. Suliveres v. Commonwealth, 865 N.E.2d 1086 (Mass. 2007) (a woman suffers no harm that the Massachusetts rape statute seeks to prevent if she is aware that she is engaging in sexual intercourse).

  48. Cf. Michael Borruso, “Sexual Abuse by Psychotherapists: The Call for a Uniform Criminal Statute,” American Journal of Law and Medicine 17(3) (1991): pp. 289–311 (it ought to be a crime for a psychotherapist to have sexual intercourse with a current patient), with Patricia Illingworth, “Patient-Therapist Sex: Criminalization and Its Discontents,” Journal of Contemporary Health Law and Policy 11(2) (1995): pp. 389–416 (it should not be a crime for a psychotherapist to have sex with a patient); Wesley Gorman, “Sex Outside of the Therapy Hour: Practical and Constitutional Limits on Therapist Sexual Misconduct Regulations,” UCLA Law Review 56 (2009): pp. 983–1039 (same).

  49. See State v. Witwer, 856 P.2d 1183 (Ariz. App. 1993).

  50. 76 Utah Code s. 5-406(2) (Lexis Advance through 2016 Second Special Sess.).

  51. 18 Idaho Code s. 6101(4) (Lexis Advance through the 2016 Sess.).

  52. 13A Code of Ala. s. 6-61(a)(1) (Lexis Advance through 2016 Sess.).

  53. 3 Md. Criminal Law Code Ann. s. 303(a)(1) (Lexis Advance through June 1, 2016).

  54. 21 Okla. Stat. s. 1114(5) (Lexis Advance through 2016 Second Regular Sess.).

  55. 9 Calif. Pen. Code s. 261(a)(2) (Deering, Lexis Advance through Chapter 22 of the 2016 Regular Sess. and Chapter 8 of the 2015–2016 2nd Extraordinary Sess.).

  56. State v. Coleman, 727 A.2d 246, 249 (Conn. App. 1999).

  57. Cf. 18 Idaho Code s. 6101 (Lexis Advance through the 2016 Sess.) (confining rape by coercion to “threatened infliction of bodily harm”), with 11 Del. Code s. 774 (Lexis Advance through 80 Del. Laws, Chapter 265) (defining “coercion” to include not only fears of “physical injury” but also fears of “damage to property,” accusation “of a crime,” publication of a secret intended to subject one to “hatred, contempt or ridicule,” “any other act … calculated to harm another person materially with respect to the other person’s health, safety, business, calling, career, financial condition, reputation or personal relationships”).

  58. Sarah Conly, “Seduction, Rape and Coercion,” Ethics 115(1) (2004): pp. 96–121, p. 103.

  59. Mitchell N. Berman, “The Normative Function of Coercion Claims,” Legal Theory 8(1) (2002): pp. 45–89, p. 60.

  60. For purposes of this distinction, we are avoiding the further complexities of distinguishing extortion, blackmail, and wrongful offers. For the argument that conceptual analysis of coercion can assist in distinguishing and evaluating these kinds of behaviors, see Berman, “The Normative Function of Coercion Claims.”

  61. We owe this example to Mitch Berman.

  62. Duress is in some ways the converse of coerced assent, though it nevertheless shares similarities with it. Consent in the context of coercion is a two-party relationship in which A brings wrongful pressure to bear on B to submit, or “assent,” to X, the issue being whether, in the event B assents, A is culpable for causing X. In contrast, duress is a three-party relationship in which A brings wrongful pressure to bear on B to inflict a wrongful harm on a third person, C, the issue being whether, in the event B harms C, B has a defense of duress. Despite their differences, however, the crime of coercing a person to assent to X and the defense of duress share two things in common. First, in both cases, the respective threatener, i.e., A, is culpable in any event for making a wrongful threat. Second, and more significantly, the mere criminality of the threat does not itself suffice to render A culpable for coercing X (in the case of consent) or to provide B with a defense to harming C (in the case of duress). Rather, it must be further and separately determined whether the wrongfully threatened harm sufficed—that is, whether it constrained B’s freedom sufficiently to render A culpable for causing X (in the event that B assents to X) and whether it constrained B’s freedom sufficiently to give B a defense of duress for harming C.

  63. H.M. Malm, “The Ontological Status of Consent and its Implications for the Law of Rape,” Legal Theory 2(2) (1996): pp. 147–164, p. 153.

  64. Under the proposed revisions to the Model Penal Code, this would be a third degree felony of sexual penetration by coercion because the officer knowingly obtains assent by threatening to “take or withhold action in an official capacity.” See American Law Institute, Proposed Model Penal Code, Discussion Draft No. 2, s. 213.4(1)(a)(ii).

  65. See Model Penal Code s. 212.5.

  66. To the extent that it is B’s lack of consent that makes rape wrongful, sex may be wrongful even if A is unaware of the circumstances that make the act non-consensual. Just as A may be unaware of the fact that B was administered drugs by C, or that B is underage, A may also be unaware of the coercive circumstances that undermine B’s consent. Indeed, A may have sex with B while being fully aware of her lack of consent due to coercion and, yet, not be criminally responsible for it if he has no control over the coercion. Consider People v. Burnham, 176 Cal. App. 3d 1134 (1986). (For an account of the Burnham trial, see San Diego Union-Tribune, January 30, 1986, at B-17). In that case, Burnham’s husband threatened to severely beat her unless she seduced and had sex with passersby. Although the husband was convicted of rape, the passersby were not because they were unaware of the threats of bodily harm that induced the wife to submit. Now assume that the passersby did know that the wife was submitting under fear of bodily injury and they knew that they had no control over the husband. That is, assume that they knew that they could either accede to the wife’s coerced requests for sex and thus prevent her from being beaten or refuse and leave her to be beaten. How should the law treat them if they accede to her requests? Should it punish them for rape as well as the woman’s husband? See Westen, The Logic of Consent, p. 185. (Indeed, this is where radical feminist views get their foothold. The claim is that women’s options are so societally restricted that no choice to engage in sex is normatively efficacious).

  67. See McNeal v. State, 187 S.E.2d 271, 273 (Ga. 1972) (construing “forcibly” in 16 Ga. Code Ann. s. 6-1 (Lexis Advance through the 2015 Sess.) to mean either physical compulsion or threats of “serious bodily harm”).

  68. See, e.g., Michelle Anderson, “Reviving Resistance in Rape Law,” University of Illinois Law Review 1998(4) (1998): pp. 953–1011; People v. Barnes, 228 Cal. Rptr. 228 (1986).

  69. 22 S.D. Codified Laws s. 22-1(2) (Lexis Advance current through 2016 Sess.).

  70. See, e.g., State v. Beck, 368 S.W.2d 490, 492–495 (Mo. 1963) (a woman who is threatened with great bodily harm unless she submits to sexual intercourse need not resist if she fears that doing so would cause her to suffer the “great bodily harm” from which the statute seeks to protect her). Indeed, some statutes make explicit what the South Dakota statute leaves implicit, by making it a crime for A to have sexual intercourse with B when B is “prevented from resisting … by threats of great and immediate bodily harm.” 18 Idaho Code s. 6101(5) (Lexis Advance current through 2016 Sess.).

  71. See, e.g., 14 La. Rev. Stat. Ann. s. 42(A)(1) (Lexis Advance through the 2016 First Extraordinary Sess.) (requiring “utmost resistance”); 13A Code of Ala. s. 6-60(8) (Lexis Advance through 2016 Sess.) (requiring “earnest resistance”); 38 Mo. Rev. Stat. s. 556.061(12) (Lexis Advance through June 29, 2016, Second Regular Sess.) (requiring “reasonable resistance”).

  72. 11 Del. Code s. 761(j)(1) (Lexis Advance through 80 Del. Laws, Chapter 265) (“the victim need resist only to the extent that it is reasonably necessary to make the victim’s refusal to consent known to the defendant”).

  73. See, e.g., XVI Iowa Code Ann. s. 709.5 (Lexis Advance through 2016 Sess.); L Ky. Rev. Stat. Ann. s. 510.010(2) (Lexis Advance through 2016 Sess.); 29 Ohio Rev. Code Ann. s. 2907.02(C) (Page, Lexis Advance through file 84 (HB 512).

  74. See Commonwealth v. Berkowitz, 609 A.2d 1338, 1348 n. 7 (Pa. App. 1992) (“Although [our state’s] ‘no resistance requirement’ does not, on its face, in any way restrict the situations to which it may apply, it appears that the statute must have limits …. If the ‘no resistance requirement’ were applied in [a] setting [in which prohibited coercion were lacking], the description of the type of threat which is sufficient would be rendered wholly meaningless. To be consistent, therefore, the ‘no resistance requirement’ must be applied only to prevent any adverse inference to be drawn against the person who, while being ‘forcibly compelled’ to engage in intercourse, chooses not to physically resist. Since there is no evidence that the instant victim was at any time ‘forcibly compelled’ to engage in sexual intercourse, our conclusion is not at odds with the ‘no resistance requirement.’”)

  75. Courts do not always use “factum” and “inducement” in this way but, rather, effectively use “fraud in the factum” to refer to any fraud that is serious enough to render sexual intercourse unlawful. See, e.g., Boro v. California, 163 Cal. App. 3d 1224, 1228 (1985).

  76. See, e.g., People v. Borak, 301 N.E.2d 1 (Ill. App. 1973) (a physician who subjects a patient to sexual intercourse by falsely pretending that it is a non-sexual gynecological exam is guilty of sexual intercourse by means of “force”). But cf. Commonwealth v. Goldenberg, 155 N.E.2d 187, 191–92 (Mass. 1959) (“forceful” penetration inflicts an injury and outrage to the feelings of a woman that fraud does not); People v. Hough, 607 N.Y.S.2d 884 (1994) (same).

  77. See generally John Decker and Peter Baroni, “‘No’ Still Means ‘Yes’: The Failure of the ‘Non-Consent’ Reform Movement in American Rape and Sexual Assault Law,” Journal of Criminal Law and Criminology 101(4) (2011): pp. 1081–1170, pp. 1132–1147.

  78. See Model Penal Code s. 213.1(2)(c); 9 Calif. Penal Code s. 261(a)(5) (Deering, Lexis Advance through Chapter 22 of the 2016 Regular Sess. and Chapter 8 of the 2015–2016 2nd Extraordinary Sess.); 14 La. Rev. Stat. s. 43(3) (2014).

  79. See 18 Idaho Code s. 6101(9) (Lexis Advance current through 2016 Sess.) (“Rape is … penetration accomplished with a female … [w]here she submits under the belief that the person committing the act is someone other than the accused”).

  80. Mich. Comp. Laws Serv. s. 750.90 [Lexis Advance through 2016 Public Act 184 (excluding Public Acts 181 and 183)].

  81. 9 Calif. Pen. Code s. 266c (Deering, Lexis Advance through Chapter 22 of the 2016 Regular Sess. and Chapter 8 of the 2015–2016 2nd Extraordinary Sess.).

  82. Kansas Stat. Ann. s. 21-5503(a)(5) (Lexis Advance through 2016 Sess.).

  83. Neb. Rev. Stat. s. 28-318(8)(a)(iv) (Lexis Advance through 2016 Sess.).

  84. 13A Code of Ala. s. 6-65(a)(1) (Lexis Advance through 2016 Sess.); 39 Tenn code ann. s. 13-503(a)(4) (Lexis Advance through the 2015 Sess.).

  85. 37 Haw. Rev. Stat. Ann. s. 702–235(4) (Lexis Advance through Chapter 125 of 2016 Legis. Sess.); 45 Mont. Code ann. s. 5-501 (Lexis Advance through 2015 Legis. Sess.).

  86. Cf. Pinson v. State, 518 So.2d 1220 (Miss. 1988) (rape) with Suliveres v. Commonwealth, 865 N.E.2d 1086 (Mass. 2007) (not rape). Cf. People v. Morales, 212 Cal. App. 4th 583 (2013) (although it is rape to elicit sexual intercourse from a woman by impersonating her husband, it is not rape to elicit intercourse by impersonating her boyfriend).

  87. See Russell Christopher and Kathryn Christopher, “Adult Impersonation: Rape by Fraud as a Defense to Statutory Rape,” Northwestern University Law Review 101 (2007): pp. 75–122, pp. 83–103.

  88. Queen v. Hutchinson, 2010 NSCA 3 (Nova Scotia Ct. App. 2010).

  89. Jonathan Herring, “Mistaken Sex,” Criminal Law Review (2005): pp. 511–524; McGregor, “Why When She Says No She Doesn't Mean Maybe and Doesn't Mean Yes,” pp. 201–202; see also Dougherty, “Sex, Lies and Consent.”.

  90. Stephen Schulhofer, “Taking Sexual Autonomy Seriously,” Law and Philosophy 11(1) (1992): pp. 35–94, 91–93.

  91. Thus, with respect to a prostitute who does not regard sexual intimacy as sacred, Murphy would not punish an actor who induces her to engage in sexual intercourse by falsely promising to pay her afterwards because Murphy does not believe she suffers harm of the kind and magnitude that he believes rape laws are designed to prevent. See Jeffrie Murphy, “Some Ruminations on Women, Violence, and the Criminal Law,” in Jules Coleman and Allen Buchanan (eds.), In Harm’s Way (New York: Cambridge University Press, 1994), pp. 209–230, pp. 216–217. Cf. Regina v. Linekar, [1995] 3 All ER 69 (sexual intercourse with a prostitute who is induced to assent to sexual intercourse by a false promise to pay is not rape). But cf. Michael v. Western Australia, [2008] WASCA 66 (S. Ct. W. Australia) (a defendant who induces a prostitute to have sexual intercourse for half her usual fee by falsely claiming that he is a police officer who might otherwise arrest her is guilty of rape).

  92. Alan Wertheimer, Consent to Sexual Relations (New York: Cambridge University Press, 2003), pp. 193–209, 213–214.

  93. See 9 Calif. Pen. Code s. 266c (Deering, Lexis Advance through Chapter 22 of the 2016 Regular Sess. and Chapter 8 of the 2015–2016 2nd Extraordinary Sess.), repudiating a decision of the California Supreme Court (Boro v. California, 163 Cal. App. 3d 1224 (1985) (ruling that an actor does not commit rape by passing himself off as a physician, misleading a patient into thinking that she suffers from a dangerous, highly infectious and possibly fatal disease, and then inducing her to believe that the only viable cure for the disease is to submit to sexual intercourse).

  94. Most states defining it as under 16, some states defining it as under 17, and the remaining states defining it as under 18. See Megan Annitto, “Consent, Coercion, and Compassion: Emerging Legal Responses to the Commercial Sexual Exploitation of Minors,” Yale Law and Policy Review 30(1) (2011): pp. 1–70, pp. 31–32.

  95. Michelle Oberman, “Turning Girls into Women: Re-Evaluating Modern Statutory Rape Law,” Journal of Criminal Law and Criminology 85(1) (1994): pp. 15–79.

  96. See Deborah Denno, “Sexuality, Rape, and Mental Retardation,” University of Illinois Law Review 1997(2) (1997): pp. 315–434.

  97. See, e.g., 76 Utah Code Ann. s. 5-406(12) (Lexis Advance through 2016 Second Special Sess.).

  98. See, e.g., Minn. Stat. Ann. s. 609.344(1)(h)-(j) (Lexis Advance through Act Chapter 160).

  99. See, e.g., 17-A Me. Rev. Stat. s. 253(2)(E) (Lexis Advance through 2016 Sess.).

  100. See, e.g., N.M. Stat. Ann. s. 30-9-10(A)(5), 30-9-10(F)(11) (Lexis Advance through 2016 Sess.).

  101. See, e.g., Mich. Comp. Laws s. 750.520d (1)(e) [Lexis Advance through 2016 Public Act 184 (excluding Public Acts 181 and 183)]. See generally Decker and Baroni, “‘No’ Still Means ‘Yes’: The Failure of the ‘Non-Consent’ Reform Movement in American Rape and Sexual Assault Law,” pp. 1127–1132 (listing states with such statutes).

  102. See Christine Chambers, “Protecting the Party Girl: A New Approach for Evaluating Intoxicated Consent,” Brigham Young University Law Review 2009(1) (2009): pp. 57–98, pp. 58–59 n. 2.

  103. See Commonwealth v. Helfant, 496 N.E.2d 433 (Mass. 1986); State v. Moorman, 358 S.E.2d 502 (N.C. 1987).

  104. See, e.g., H N.Y. Penal Law s. 130.00(6) (Consol., Lexis Advance through 2016 released Chapters 1–72); Model Penal Code s. 213.1(1)(b).

  105. See Alexander Boni-Saenz, “Sexuality and Incapacity,” Ohio State Law Journal 76(6) (2015): pp. 1201–1253, p. 1204.

  106. But see Michael L. Perlin, “Hospitalized Patients and the Right to Sexual Interaction: Beyond the Last Frontier?,” New York University Review of Law and Social Change 20 (1993–1994): pp. 517–545, p. 537.

  107. Cf. Joan McGregor, “Force, Consent and the Reasonable Woman,” in Jules Coleman and Allen Buchanan (eds.), In Harm’s Way (New York: Cambridge University Press, 1994), pp. 244–245 (it ought to be a crime to have sexual intercourse with anyone who is “drunk or high on drugs”) with Shlomit Wallerstein, “‘A drunken consent is still consent’—or Is It? A Critical Analysis of the Law on a Drunken Consent to Sex Following Bree,” Journal of Criminal Law 73(4) (2009): pp. 318–344, pp. 340, 343 (arguing that it ought to be a crime to have sexual intercourse with anyone who has had “a lot to drink” or is “very drunk”), with Stephen J. Schulhofer, Unwanted Sex: The Culture of Intimidation and the Failure of Law (Cambridge: Harvard University Press, 1998), p. 269 (arguing that it ought to be a crime to have sexual intercourse with anyone who is too intoxicated to express her wishes verbally), and with Heidi Hurd, “The Moral Magic of Consent,” Legal Theory 2(2) (1996): pp. 121–146, pp. 141–142 (arguing that, short of being so intoxicated as to be incapable of committing a crime, a voluntarily intoxicated person who assents to sexual intercourse should be deemed to legally consent to it).

  108. See Regina v. Ewanchuk, 195 W.A.C. 1 para. 26 (S. Ct. Canada, 1999) (“The absence of consent, however, is subjective and determined by reference to the complainant’s subjective internal state of mind towards the touching, at the time it occurred”).

  109. 9A Wash. Rev. Code s. 44.010 (Lexis Advance through 2016 Sess.).

  110. See Larry Alexander, “The Moral Magic of Consent (II),” Legal Theory 2(3) (1996): pp. 165–174; Joshua Dressler, “Where We Have Been, and Where We Might Be Going: Some Cautionary Reflections on Rape Law Reform,” Cleveland State Law Review 46(3) (1998): pp. 409–442, p. 424; Hurd, “The Moral Magic of Consent,” pp. 124–125; Douglas Husak, “The Complete Guide to Consent to Sex: Alan Wertheimer’s ‘Consent to Sexual Relations’” (book review), Law and Philosophy 25(2) (2006): pp. 267–287, p. 287.

  111. See David Archard, Sexual Consent (New York: Westview Press, 1998), pp. 4–5; Brenda Baker, “Understanding Consent in Sexual Assault,” in Keith Burgess-Jackson (ed.), A Most Detestable Crime: New Philosophical Essays on Rape (New York: Oxford University Press, 1999), pp. 49–70, pp. 52–53; John Kleinig, “The Nature of Consent,” in Franklin Miller and Alan Wertheimer (eds.), The Ethics of Consent: Theory and Practice (New York: Oxford University Press, 2010), pp. 3–24, pp. 5, 9–11; Malm, “The Ontological Status of Consent and its Implications for the Law of Rape,” pp. 147–155; McGregor, “Force, Consent and the Reasonable Woman,” p. 242; Schulhofer, “Taking Sexual Autonomy Seriously,” pp. 74–77; Emily Sherwin, “Infelicitous Sex,” Legal Theory 2(3) (1996): pp. 209–231, pp. 216–217; Wertheimer, Consent to Sexual Relations, pp. 144–152.

  112. See, e.g., Ferzan, “Consent, Culpability, and the Law of Rape.”

  113. This would render sexual intercourse potentially permissible because there are reasons that consented-to sex might still be wrong—say because it constitutes adultery—even when it does not instantiate the wrong of rape.

  114. Cf. People v. Hunt, 72 Cal. App. 3d 190 (1977).

  115. People v. Bink, 444 N.Y.S.2d 237 (1981).

  116. See, e.g., Ferzan, “Consent, Culpability, and the Law of Rape.”

  117. For further concerns about the “dignity” view, see Ferzan, “Consent, Culpability, and the Law of Rape.”

  118. Certainly, whether a jurisdiction ought to draw a distinction here depends on whether one believes that attempts ought to be punished the same as completed crimes. Here, we disagree. Cf. Larry Alexander and Kimberly Kessler Ferzan, Crime and Culpability: A Theory of Criminal Law (Cambridge: Cambridge University Press, 2009), ch. 5 (arguing attempts should be punished the same as completed crimes) with Peter Westen, “Why criminal harms matter: Plato’s abiding insight in the Laws,” Criminal Law and Philosophy 1 (2007), pp. 307–326 (members of society are rightfully relieved when harm does not occur and this justifies less punishment for attempts).

  119. See Decker and Baroni, “‘No’ Still Means ‘Yes’: The Failure of the ‘Non-Consent’ Reform Movement in American Rape and Sexual Assault Law,” pp. 1126–1132.

  120. See, e.g., Dan M. Kahan, “Culture, Cognition, and Consent: Who Perceives What, and Why, in Acquaintance Rape Cases,” University of Pennsylvania Law Review 158 (2010): pp. 729–813 (conducting a study wherein subjects found that women who said “No” actually consented).

  121. For a jurisdiction that takes the position that proceeding to have sexual intercourse in the face of a “No” is not criminal unless a reasonable person under the circumstances would understand the “No” to be a “‘genuine and real’ refusal of consent,” see Gangahar v. State, 609 N.W.2d 690 (Neb. App. 2000). See also H N.Y. Penal Law s. 130.05(2)(d) (Consol., Lexis Advance through 2016 released Chapters 1–72).

  122. Charlene Muehlenhard and Lisa Hollabaugh, “Do Women Sometimes Say No When They Mean Yes? The Prevalence and Correlates of Women’s Token Resistance to Sex,” Journal of Personality and Social Psychology 54(5) (1988): pp. 872–879, pp. 875–877; see also Richard Klein, “An Analysis of Thirty-Five Years of Rape Reform: A Frustrating Search for Fundamental Fairness,” Akron Law Review 41(4) (2008): pp. 981–1058, p. 1012 (“[R]ecent studies have found very similar results as the Texas findings across the country … [including] one study [that] found that 90 % of sexually experienced women who had said ‘No’ when they meant ‘Yes,’ had stated that an important factor in their initial ‘No’ had been the fear of appearing promiscuous.”) (footnotes omitted).

  123. Kahan, “Culture, Cognition, and Consent: Who Perceives What, and Why, in Acquaintance Rape Cases,” p. 784.

  124. Schulhofer, Unwanted Sex: The Culture of Intimidation and the Failure of Law, p. 65.

  125. Susan E. Hickman and Charlene L. Muehlenhard, “‘By the Semi-Mystical Appearance of a Condom’: How Young Women and Men Communicate Sexual Consent in Heterosexual Situations,” Journal of Sex Research 36(3) (1999): pp. 258–272, p. 271; see also Dan Subotnik, “‘Hands Off’: Sex, Feminism, Affirmative Consent, and the Law of Foreplay,” Southern California Review of Law and Social Justice 16 (2007): pp. 249–318, pp. 293–298.

  126. See, e.g., R. v. RJS, 1994 Nfld. & P.E.I.R. LEXIS 1345 (Prince Edward Island S. Ct. 1994) (a person can consent to sexual intercourse by doing nothing under circumstances in which a person who did not desire it would act accordingly).

  127. People v. Iniguez, 872 P.2d 1183, 1185 (Cal. 1994); see also Jennifer J. Freyd, “What Juries Don’t Know: Dissemination of Research on Victim Response is Essential to Justice,” Trauma Psychology Newsletter (Fall 2008): pp. 15–16, p. 16 (studies show that many women respond to forcible sexual advances by falling into a state of “tonic immobility” characterized by “dissociation” and “paralysis”).

  128. See In the Interest of M.T.S., 609 A.2d 1266 (N.J. 1992) (“We conclude, therefore, that any act of sexual penetration engaged in by the defendant without the affirmative and freely given permission of the victim to the specific act of penetration constitutes the offense of sexual assault.”); Stephen Schulhofer, “The Feminist Challenge in Criminal Law,” University of Pennsylvania Law Review 143 (1995): pp. 2151–2207, p. 2181 (“Consent for an intimate physical intrusion into the body should mean in sexual interactions what it means in every other context—affirmative permission clearly signaled by words or conduct.”)

  129. Schulhofer, Unwanted Sex: The Culture of Intimidation and the Failure of Law, p. 271.

  130. See, e.g., LXII N.H. Rev. Stat. Ann. s. 632-A: 2(i)(m) (Lexis Advance through Chapter 309 of 2016 Sess.); Wis. Stat. ann. s. 940.225(4) (Lexis Advance through 2015); see also Schulhofer, Unwanted Sex: The Culture of Intimidation and the Failure of Law, p. 272.

  131. Ilene Seidman and Susan Vickers, “The Second Wave: An Agenda for the Next Thirty Years of Rape Law Reform,” Suffolk University Law Review 38(2) (2005): pp. 467–491, p. 490.

  132. Michelle Anderson, “Negotiating Sex,” Southern California Law Review 78(6) (2005): pp. 1401–1438, p. 1407.

  133. Anderson, “Negotiating Sex,” p. 1421.

  134. See Don Dripps, “Beyond Rape: An Essay on the Difference Between the Presence of Force and the Absence of Consent,” Columbia Law Review 92(7) (1992): pp. 1780–1809, pp. 1804–1805, 1807.

  135. See Commonwealth v. Berkowitz, 641 A.2d 1161 (Pa. 1994). Cf. Ex parte Gordon, 706 So.2d 1160, 1164 (Ala. 1997) (Houston, J., concurring).

  136. See 18 Pa. Cons. stat. ann. s. 3124.1 (Lexis Advance through 2016 Sess.).

  137. See John Searle, Expression and Meaning: An Essay in the Philosophy of Language (Cambridge: Cambridge University Press, 1969).

  138. Searle, Expression and Meaning: An Essay in the Philosophy of Language, pp. 16–17, 26–27.

  139. See Searle, Expression and Meaning: An Essay in the Philosophy of Language.

  140. See Westen, The Logic of Consent, pp. 79–87.

  141. See Alexander and Ferzan, Crime and Culpability, pp. 297–302 (“In the criminal law context, an overinclusive rule is a rule that creates the potential for punishing an innocent actor.”); Ferzan, “Consent, Culpability, and the Law of Rape,” (discussing in the rape context, the implication that over-inclusivity allows for punishing the innocent).

  142. Cf. Douglas Husak and George Thomas, “Date Rape, Social Convention and Reasonable Mistakes,” Law and Philosophy 11(1/2) (1992): pp. 95, p. 112 (No), with Kahan, “Culture, Cognition, and Consent: Who Perceives What, and Why, in Acquaintance Rape Cases,” pp. 750–752, 798–804 (Yes).

  143. See https://nei.nih.gov/health/color_blindness/facts_about (noting “[t]raffic lights pose challenges” for a color blind person).

  144. For a compelling argument that perhaps ignorance of the wrongfulness of one’s conduct should always excuse, see Douglas N. Husak, Ignorance of Law: A Philosophical Analysis (forthcoming 2016 Oxford University Press).

  145. See Anderson, “Negotiating Sex,” p. 1433 (advocating “widespread public education on television, in schools, and in the media about the ethical and legal importance of negotiating penetration”).

  146. See Aya Gruber, “Rape, Feminism, and the War on Crime,” Washington Law Review 84 (2009): pp. 581–658, p. 647.

Author information

Authors and Affiliations

  1. Harrison Robertson Professor of Law, Caddell and Chapman Professor of Law, University of Virginia Law School, Charlottesville, VA, USA

    Kimberly Kessler Ferzan

  2. Frank G. Millard Professor of Law, Emeritus, Michigan Law School, Ann Arbor, MI, USA

    Peter Westen

Authors
  1. Kimberly Kessler Ferzan
    View author publications

    You can also search for this author in PubMed Google Scholar

  2. Peter Westen
    View author publications

    You can also search for this author in PubMed Google Scholar

Corresponding author

Correspondence to Kimberly Kessler Ferzan.

Additional information

The authors thank Ken Simons for his invaluable comments. Megan Mackie, Anna Mills, and Claire Mitchell provided excellent research assistance.

Rights and permissions

Reprints and permissions

About this article

Check for updates. Verify currency and authenticity via CrossMark

Cite this article

Ferzan, K.K., Westen, P. How to Think (Like a Lawyer) About Rape. Criminal Law, Philosophy 11, 759–800 (2017). https://doi.org/10.1007/s11572-016-9404-7

Download citation

  • Published:

  • Issue Date:

  • DOI: https://doi.org/10.1007/s11572-016-9404-7

Keywords

Search

Navigation