Jed Rubenfeld, a law professor at Yale, is no stranger to controversy. He’s the husband of Amy Chua, also a Yale Law professor, who gave herself an enduring nickname with her memoir extolling the virtues of Chinese parenting, Battle Hymn of the Tiger Mother. This February, the two released a collaboration called The Triple Package—a book about the cultural habits of what they deemed successful ethnic groups, like the Chinese and the Jews. Critics suggested it was sloppy social science at best, and thinly veiled racism at worst.
But of all the polarizing treatises the couple have penned, the one that may prove most important has garnered the least publicity.
It’s an article about the laws that punish rape. Written by Rubenfeld alone, "The Riddle of Rape-by-Deception and the Myth of Sexual Autonomy" appeared last year in The Yale Law Journal and starts with this question: If rape is sex without consent, why is lying about your identity in order to have sex not considered rape? Rubenfeld’s argument, vastly simplified, is that this puzzle undermines the link between rape and consent. His article is a search for a more intellectually coherent doctrine to guide rape laws and culminates with a call for defining rape the way courts did for centuries—not as an act without consent, but as an act of force. That has generated a lot of controversy within legal circles.
The idea that rape must involve force might seem intuitive: When most people picture the crime, they think of an armed stranger in an alley—or, more generally, a large man holding a smaller woman down. But the reality is different. Most victims know their assailants, and most cases turn on subtle coercion or social pressure, not physical violence. For four decades, feminist activists and legal scholars have waged a campaign against these misconceptions—and against force requirements, which put so many rape victims outside the scope of the law. “The problem is about the cases that aren’t coming to the fore,” says Deborah Tuerkheimer, a law professor at DePaul University and former prosecutor, and one of four people to write a response to Rubenfeld in The Yale Law Journal. “Prosecutors have to work with the laws on books. If there’s a force requirement and you’re not going to be able to prove that beyond a reasonable doubt, you’re not even taking it to a jury.”
The campaign has made inroads. As of 2011, 17 states had written force out of their laws altogether, while others had added multiple “grades” of punishment for rape, with only the highest requiring force. Sixteen states still had laws that did not mention consent. In 2012, the Justice Department excised force from the definition of rape in the Uniform Crime Report, the criterion that determines how the government reports crime statistics. (Heeding other feminist arguments, the new definition also covers both men and women, and oral and anal penetration as well as vaginal.) “This new, more inclusive definition will provide us with a more accurate understanding of the scope and volume of these crimes,” Attorney General Eric Holder said at the time.
Now, a leading legal body is poised to weigh in on the debate over force requirements: The American Law Institute is in the midst of rewriting the sexual assault section of its model penal code, a set of guidelines that became the basis for state laws across the country after its original release in 1962. The part of the code that deals with sex crimes “has long been considered outdated,” said Erin Murphy of NYU Law School, one of two people leading the revision process. Since whatever ALI decides promises to be broadly influential, anything written about rape law right now “isn’t just academic,” Tuerkheimer said. “There are practical implications.”
That makes Rubenfeld’s article more than an intellectual exercise. Critics fear it could become a weapon in the hands of those who would slow this evolution, or even reverse it. Conservative lawmakers and anti-abortion groups have consistently tried to narrow the definition of rape, and with it the “rape exceptions” through which victims can circumvent bans on abortion: In 2011, a group of Republican congressmen tried to limit public funding of abortions to what they dubbed cases of “forcible rape.” With this in mind, Rubenfeld’s feminist critics have penned lengthy, often angry critiques of his article. Corey Rayburn Yung, a professor at the University of Kansas’s law school, has suggested Rubenfeld’s conception would define force so narrowly that it would legalize “approximately 90 percent of rape in America.”
Rubenfeld says that this is a misunderstanding of his position. He supports expanding the definition of force to cover more crimes, he says, and doesn’t think it’s fair to accuse him of being a dilettante in the field. “I've been writing about and criticizing the ‘right to sexual autonomy’ (which is the underpinning of the definition of rape as unconsented-to sex) for a long time,” he told me via e-mail. “In fact, that was part of my very first article, called The Right of Privacy, which was a defense of women's abortion rights.”
But feminists see his article as a step backwards. “We’re working in a world where we’re trying to reform this crime so that it’s compatible with evolving sexual mores, with standards of decency,” said Anne Coughlin of the University of Virginia Law School. “His argument is in service of retaining the definition that the entire reform movement has been trying to change.”
Rape was originally a crime against a man’s property, not a woman’s body. The United States inherited Britain’s medieval common law and, where sexual assault was concerned, left it more or less unchanged until the latter half of the twentieth century.
The uneasy coexistence of force and consent is as old as this code, which defined rape as “the carnal knowledge of a woman by force and against her will.” But jurisdictions usually adorned the common law with other stipulations, deemed necessary to rule out the possibility that the sex had been consensual. For example, “the victim was required to resist, sometimes to her dying breath,” said Rayburn Yung. “You had to try to die to preserve your virginity, or your husband’s right to you.” Resistance was also a way to prove that the woman had not lied—a suspicion that still defines the way rape is prosecuted today. Then and now, force, unlike consent, can leave a mark. In the late twentieth century, “utmost” resistance became “earnest resistance,” and then that, too, was stricken from the books across most of the U.S.—though it remains the law in Alabama. Under the same logic of possession, it was not considered possible for a husband to rape his wife until the 1970s.
For centuries, rape law imprisoned women in a social schema that valued their purity above all else. It reinforced other boundaries, too: During the Jim Crow era, accusations of sexual violation were a tool in the subjugation of black men; both the courts and the mob punished the rape of a white woman with death. But the social movements of the 1970s and '80s exposed rape law’s biases. Violence against women became a mobilizing point for feminism’s Second Wave. Beneath more public displays, like the famous Take Back the Night marches, activists took up a lobbying campaign to criminalize marital rape; to eradicate resistance requirements; and to enact rape shield laws, which forbid the defense from cross-examining women about their sexual histories. They also challenged force requirements.
Two historic legal rulings in particular chipped away at the dominance of force. The first was Commonwealth v. Berkowitz in Pennsylvania in 1992. A sophomore at East Stroudsburg State University locked his roommate’s girlfriend into his bedroom, pushed her onto the bed, and had sex with her. Though she said “no” repeatedly, she did not resist. The state Supreme Court found Berkowitz not guilty because he did not employ the “forcible compulsion” specified by the state’s rape code. The ruling didn’t sit well. In 1995, the state legislature passed what had been dubbed the “no means no law,” making sex without consent—which it called “sexual assault,” not “rape”—a second degree felony.
In the same year, in State in the Interest of M.T.S., the New Jersey Supreme Court heard another case that involved neither abnormal force nor consent. It ruled something novel: that penetration without consent should itself satisfy the statute’s force requirement. The M.T.S. ruling also altered the definition of consent. Instead of placing responsibility on the victim to say “no,” the court said, the court should define any sex in the absence of a clear “yes” as rape. “At the time, it stirred up a lot of debate,” remembers Coughlin. “It’s interesting that an idea that’s really out there when it’s decided, two decades later, can seem right.”
Feminists have pushed for this evolution in legal thinking in the hopes of changing the way people understand rape outside the courtroom. The more psychologists learn, the more it seems to be the violation of a person’s will or trust—in other words, the lack of consent—that leaves the biggest emotional scars. A pioneering 1988 study led by psychologist Mary Koss found no difference in the levels of depression and anxiety among female college students who had been raped, sometimes violently, by strangers, and those who had been raped by acquaintances, usually not involving violence. In 1990, psychologist Sally Bowie found that—as Legal Momentum’s Lynn Hecht Schafran put it—“victims of nonstranger rape often experience even more severe and long lasting psychological trauma than the victims of strangers because they experience more self and societal blame for failing to prevent the rape.”
Of course, stranger rape is not always violent, and rape by someone known to the victim can be brutally so. But acquaintance rape is far less likely to involve force (no one knows exactly how much less; the empirical research here is spotty) and it happens far more often. According to the Rape, Abuse & Incest National Network (RAINN), two-thirds of rapes involve someone the victim knew, and 28 percent of rapes involve someone the victim knew intimately.
Force requirements can teach police officers, prosecutors, juries, and victims themselves to think about rape the wrong way. And it’s clear that public perception has a long way to go toward recognizing non-violent rape by an acquaintance as an equal crime. A recent study in the journal Gender & Society found that teens are conditioned to see coercive sex as part of the category of “normal stuff” that “guys do.” This conventional wisdom keeps cases from going forward: RAINN estimates that only 40 percent of rapes are reported to police; police only make an arrest in a quarter of those cases; and in the end, only three percent of rapists serve time.
Though acquaintance rape still holds an uneasy place in our cultural lexicon, more than twenty years after Berkowitz and M.T.S., the legal community broadly agrees that sex without consent is a serious crime. Rubenfeld, though, thinks that consensus raises problems of its own.
His argument is that if we consider consent the line between legal sex and rape, we have to care if that consent is based on false information. As he put it to me in an email, “deception means there wasn’t true consent.” He asked me to consider if it’s a crime “when a person falsely says ‘I love you’…and the other person wouldn’t have had sex without that deception”? In Rubenfeld’s view, using a purely consent-based definition requires us to say that this is rape. People who don’t want to think that lying—about your marital status, your age, where you went to college—to obtain consent is tantamount to rape “have to realize that their definition of rape implicitly carries with it an additional element that excludes cases of deception,” he wrote to me. “My point is that this missing element is in fact, and has always been, the force requirement."
The feminist legal experts I interviewed didn’t think much of that argument. “Consent,” they said, is all about the act of agreeing—and it still stands, even if it was given under false pretenses. "The law never utterly and completely protects one value; it balances them against other values," Coughlin told me. And in this case, it can balance the right to give or withhold consent—"sexual autonomy"—against other factors, like free speech. “I think we can accept that consent is imperfect, and that all sorts of forces act upon it, but still value it,” said Tuerkheimer, pointing out that we can never know everything about the people we give our consent to. While some experts could imagine instances when lying to get sex ought to be criminal, they said it still wouldn’t qualify as rape. (One such lie is already illegal in some places: If you’re HIV-positive, it’s a felony to have sex without disclosing it in 29 states.)
Rubenfeld says that he agrees with his critics on more than they realize, particularly when it comes to the wrongs of the old system. “I totally agree with most of the criticisms of the force requirement as it existed in rape law for centuries,” and in particular of the resistance requirement, he wrote to me. Many of his critics were particularly outraged that he seemed to be advocating a regression to a more narrow conception of force, but Rubenfeld says this is a misunderstanding. The offending line in his article compared rape to slavery and torture, saying all “are violations of a person’s fundamental right to self-possession.” He says he meant to argue that the acts were similar in kind, but many readers took him to mean that, to qualify as rape, the force had to be similar in degree.
“I’m in favor of an expanded force requirement,” he said, “an understanding that sees force in threats, in drugging, in physical restraint (holding the victim down, locking the victim up), and so on.” Still, critics say even a broad force requirement like the one Rubenfeld sketches is bound to discourage some cases from coming to trial.
The American Law Institute’s new model code, now slated to be finished around 2016, may functionally decide the force-versus-nonconsent debate. The most likely outcome right now, Murphy says, is an approach that has become popular in rape statutes in recent decades: creating several different “grades” for the crime, with rape that involves force perhaps meriting the harshest punishment. This kind of grading has ignited a new controversy among feminists, some of whom believe that any attempt to classify levels of harm risks minimizing the particular trauma that comes with sexual crime. But graded statutes are practical: They’re inviting to prosecutors, since they provide more freedom, and they seem to best capture the intuitions of judges and juries. “We can say maybe we should make distinctions between a failure to get consent versus more coercive circumstances,” Murphy said. “We’re giving more sensitive tools to the prosecutor.”
Rubenfeld’s article was published as a growing number of statutes have adopted language to cover nonconsent, or lower grades that take it into account—and many experts hope the ALI’s new code will inspire more states to follow suit. But it seems force won’t be erased from our rape law any time soon. To Rubenfeld, force is the “missing element” that makes rape law coherent. To many feminists, it’s the fruit of a long and poisonous history. To Murphy and the ALI, it may be a practical acknowledgement that, as she told me, “prosecutions still heavily rely on force as a way to get convictions.”
“I think there’s a growing recognition and understanding that sexual assault doesn’t look like this conventional picture in most cases,” she said. “That doesn’t mean it’s always easy to convince a jury.”