By Sherry Colb
In my Verdict column for this week, I discuss a California bill that would classify it as rape when a defendant obtains sexual consent by impersonating his target's intended sexual partner. As I explain, this bill is a response to a case, People v. Morales, in which the prosecutor argued to the jury that it could convict the defendant if it found that he had impersonated the victim's boyfriend. As it turns out, California law (currently) classifies consent-by-impersonation as rape only in the event that the defendant was impersonating the victim's husband. In my column, I examine the historical line between marital rape and other forms of rape as well as the difference between "rape by deception" and "rape by impersonation."
In this post, I want to respond in an admittedly very brief and incomplete way to an argument made by Professor Jed Rubenfeld in an article to be published in the Yale Law Journal, entitled The Riddle of Rape-by-Deception and the Myth of Sexual Autonomy. In this article, Rubenfeld argues persuasively that "rape by deception" should not be classified as rape at all. He suggests that what makes it wrong to lie to obtain a person's consent to sex is more in the nature of "fraud" than of the violent subjugation that defines the outrageous offense of rape. I agree with this assessment and have said as much in a discussion here.
I disagree with Rubenfeld, however, in his further argument that "rape by deception" is truly of a piece with "rape by nonconsent." Rubenfeld argues that if one really needs to get "consent" before engaging in sexual intercourse, then it follows that the consent must be premised on materially accurate information. Stated differently, if we believe that consent on the basis of false information does not qualify the sex that occurs as rape, then it follows that we ought to believe that nonconsent is itself insufficient to qualify a sex act as rape. After all, real consent -- in the context of a contractual business transaction -- must not be based on false representations by a party, so our accepting the permissibility of false representations betrays our view that consent is not really required to avoid the proper label of rape. It is violence, he suggests, not nonconsent, that defines the offense of rape.
Rubenfeld acknowledges that his claim is likely to encounter opposition. His argument and the counter-arguments, moreover, are far too complex (and, to give Rubenfeld his due, well reasoned and creative) to either summarize or fully address in a blog post. I will therefore offer a very incomplete and partial response, because I do feel that something needs to be said.
Rubenfeld proposes that to determine whether a woman consented requires us to peer into her mind and figure out whether she really wanted or really did not want to have sex. If he were right about this, then the consent determination would, as he argues, necessarily involve a scrutiny of the woman's sexual feelings and propensities, a situation in which the woman is "on trial." I would suggest, however, that requiring consent does not necessitate such scrutiny of the woman, because consent and desire are two distinct matters.
A person can consent to have sex without experiencing any desire for the sex (for example, in a case of prostitution or where one partner wants to express gratitude to the other and bestows sex as a kind of gift). Robin West wrote a fascinating article about the problem of unwanted sex, a problem that she notably distinguishes from nonconsensual sex but which she nonetheless sees as worthy of discussion. It is also the case that a person might feel sexual desire but decide not to consent (perhaps because the sex would betray an existing committed relationship). Though consent and desire undoubtedly overlap, they are not identical.
For this reason, if a woman says "no" or "stop," to a man, it really should not matter whether she actually wants or actually does not want to have sex with the man. By the same token, if a woman pushes a man away, it is legally irrelevant that in her mind, she was thinking that she would really like to have sex with the man. It must be up to the partners in sexual activity whether that activity occurs or not, and a choice to say no (or physically resist) must be honored, no matter what each individual is truly feeling in his or her mind. Likewise, if a person goes along with a sexual encounter but actually feels no desire and wishes the sex would not take place, the sex is not rape.
But why, asks Rubenfeld, can't a woman simply get up and leave the room if she does not want to have sex? Assuming that the man is not using force against her, isn't she amply capable of asserting her choice in the situation? The problem with these questions is that they assume that there is no implied threat in place. Rubenfeld acknowledges that if one partner threatens the other, then physical force is no longer necessary to define an act of sex as rape. He acknowledges further that a threat need not be explicit and thus arrives at an inquiry about whether a reasonable person in the alleged victim's situation would have feared violence.
But if that is the proper question, then it seems quite plausible to say that once a person has said "no" or "stop" and the other person has continued to initiate intercourse with the first person, there is an implicit threat in place: (1) your objections do not register with me; (2) I will continue doing what I'm doing no matter what you say; and (3) if you try to stop me more forcefully, I will still continue doing what I'm doing, even if violent force is required. In other words, the notion that "no means no" actually illuminates a power imbalance that commonly accompanies sexual encounters: one of the parties is physically stronger than the other and can therefore rely on that disparity of strength to deter physical resistance when verbal resistance is ignored. Rubenfeld acknowledges that this can happen and even that "most of the time, a force requirement will match up unproblematically with the view that sex in the face of a 'no' is rape." But he then gives as an example of where "no" does not (and should not) make it rape, the case of a woman whose door was unlocked and who was moaning "no" throughout the sex but could have and yet did not get up and leave the room: "The law does not empower women when it presumes them too weak to stand up and walk away through an unlocked door (in the absence of force or threat) if they don't want to have sex."
Ideally, I would like to live in the world as Rubenfeld envisions it, where women feel empowered to assert their wishes, particularly in the absence of an explicit threat of violence. In the real world, however, people who say "no" are not simply refusing to sign a contract (in which material misrepresentations would void consent just as effectively as if there were no signature at all). They are expressing opposition to having sex at the particular time with the particular person, an oral expression that accordingly requires no physical battle where one of the parties is likely to prevail over the other. Once verbal resistance is ignored, the remaining avenue of physical resistance may reasonably be understood as a potential provocation, even in the absence of any threat. In other words, if "threats" properly have the same impact as the actual use of force, as Rubenfeld concedes that they do and ought to, then an ignored expression of nonconsent ought to be understood as force and sexual aggression.