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Rape Law Fundamentals


Modem American rape law is the product of historical contingencies, compromises, legislative inattention, successful reforms, and backlash. It is neither a puzzle to be solved nor a coherent system of rules and values. Perhaps the clearest lesson to draw from our criminal laws regarding sex is that there is little logic, reason, or consistency among them. As a result of its checkered past, myths and misunderstandings about rape law abound. Jed Rubenfeld's recent article, The Riddle of Rape-by-Deception and the Myth of Sexual Autonomy, exemplifies the confusion many courts, scholars, and members of the public have about modern rape law. Rubenfeld's specific proposal to base rape statutes on a right to self-possession, because it is derived from mistaken premises about rape law, would likely make legal over ninety percent of rapes in America. By replacing the non-consent element of modern rape statutes with a narrow force requirement, Rubenfeld's recommendation essentially decriminalizes non-stranger rape and rape by a victim's intoxication.

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