Falk Responds to Rubenfeld’s Thoughts on Rape by Fraud in Yale Law Journal’s Online Essays

Professor Patricia J. Falk

Professor Patricia J. Falk

C|M|LAW Professor Patricia J. Falk has published an essay, Not Logic, but Experience: Drawing on Lessons from the Real World in Thinking About the Riddle of Rape-by-Fraud, in YLJO, the Yale Law Journal Online.  Her essay is a response to an article by Jed Rubenfeld, The Riddle of Rape-by-Deception and the Myth of Sexual Autonomy, 122 YALE L.J. 1372 (2013), in which, according to YLJO  editors, “he argued for a new rape law principle that aims to unravel an intriguing riddle that he has posed about obtaining sex by means of deception.”  According to Falk, “Rubenfeld argues the legal system should not criminalize rape-by-deception because the notion that rape law vindicates the victim’s sexual autonomy is a myth that should be rejected. He proposes that we enshrine the right to self-possession, in place of sexual autonomy, as the guiding principle at the heart of rape law, likening rape under these circumstances to slavery and torture, and suggests that we only punish those who violate this right of self-possession. One result of this analysis is to resurrect the “much-maligned” force requirement as the defining, indispensable element of rape. He argues: “States may criminalize all sex-by-deception if they choose, but violent rape violates fundamental rights in a way that sexual deception doesn’t, offering a justification to states that choose to stick to the force requirement.”  In her responsive essay, YLJO editors write that Professor Falk  “. . . argues that Professor Jed Rubenfeld’s solution to the “riddle of rape-by-deception” goes too far in eviscerating the body of rape law that courts and legislatures have developed over the past decades. Falk suggests that eliminating nonconsent and foregrounding force is a mistake, and that it is instead critical to think more robustly about what meaningful consent and sexual autonomy might require.”

To read Professor Falk’s essay, click here:

http://www.yalelawjournal.com/criminal-law-and-sentencing/1223-not-logic-but-experience-drawing-on-lessons-from-the-real-world-in-thinking-about-the-riddle-of-rape-by-fraud

Professor Rubenfeld’s article is here:  http://www.yalelawjournal.org/images/pdfs/1153.pdf

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