Solving the Myth of Rape-by-Deception: Based on the Restatement of Sexual Autonomy

Abstract

When the defendant induces a woman to have sex with him by deception, whether he constitutes the crime of rape is a difficult problem that plagues the theory and practice of criminal law. In this regard, common law theories put forward the factum/inducement dichotomy, the theory of right to self-possession and the theory of sexual autonomy in a broad sense, but none of them can reasonably solve this problem. The purpose of this paper is to demonstrate which kind of deception constitutes a criminal offence of rape. We believe that, the crux of the matter lies in the lack of a clear definition of the concept of sexual autonomy. In legal theory, sexual autonomy should be defined as the woman’s self-determination of the intimacy of sexual activity with a particular person. The intimacy of sexual activity includes three dimensions: the degree of sexual intimacy, intimacy privacy and intimacy taboo. Only when the defendant deceives the victim about the relevant facts of one of these three dimensions does he constitute the crime of rape. In conclusion, when the deception in a rape-by-deception case is about the degree of sexual intimacy, intimacy privacy or intimacy taboo, the defendant constitutes rape.