The article “The Riddle of Rape-by-Deception and the Myth of Sexual Autonomy” by Jed Rubenfeld, a Law Professor at Yale University, argues that if we are serious about protecting people’s right to make their own decisions about their sexual autonomy, we will make all types of sexual activities by deception illegal and that makes Rape a significant offense (Dougherty, 2013). He further questions why impersonation is not regarded as Rape, if at all, Rape by law is sexual contact without a person’s consent. In a nutshell, Rubenfeld contends that this problem dismantles the connection between Rape and consent. In his analysis of rape legislation, Rubenfeld argues that perhaps the self-possession theory offers several benefits. It reflects (what he calls) the phenomenology of rape victims and avoids the problematic implication of criminalizing all sex by deceit. His work attempts to find a more consistent philosophy to underpin rape legislation. It concludes with a plea to return to the traditional legal definition of Rape as an act of coercion rather than one requiring agreement. This has sparked heated debate amongst legal experts.
According to Rubenfeld, the existing gap in the theoretical literature for a normative basis for rape law can be filled by his idea of avoiding criminalizing sex based on personal consent. His position is that Rape, like slavery and torture, violates the victim’s “right to self-possession” (Rubenfeld, 2010). Therefore, the victim’s loss of control over their own sexual body is at the heart of the terrible wrong that is Rape. To be clear, this kind of possession is not a “property right. Rather, bodily possession is an issue… of physical control.” That’s why Rubenfeld defines Rape as the criminalization of the compulsion to take sexual possession of another person’s body. By extension, this theory would mean that the “much-maligned force requirement” in rape legislation is possibly not that evil (Rubenfeld, 2010). A “fraud victim keeps his essential bodily self-governance,” which is another goal of the principle, should prevent Rape by deceit. Even if his identity has been shifted, his physical body still belongs to him.
Rubenfeld maintains that one does not lose control over their body through deception or fraud and embarrassment; one loses when another person subjects a total and invasive control over their body, making the body an essential sense no longer their own (Rubenfeld, 2010). It is at this point that Rubenfeld introduces the concepts of torture and slavery in his understanding of Rape. Those are two classic examples of someone having complete dominion over another person’s physical being. Even though Rubenfeld often used violent language when describing Rape, his self-possession concept need not be predicated on this inaccurate generalization (Zhuang & Liu, 2022). Most generously, his approach can be understood to view the rapist’s control over the victim’s body as violent in and of itself. In his discussion of force, Rubenfeld makes it apparent that this level of mastery is needed to satisfy the requisite level of significance. For that reason, he makes it clear that the use of force will be applicable by law if another person masters and takes the victim’s body, taking away her “self-possession.”
Sex offenses are among the highest criminal instances, especially considering the potential for victim injury and the severity of penalties for those responsible. It’s hardly surprising that a conviction for a sex crime might have lasting repercussions for the offender, given the gravity of such offenses. According to Get Legal (2022), individuals guilty of any sexual offense are collectively referred to as “sex offenders,” Their names are published on a public offender list. While the specifics of each crime may vary from state to state, specific patterns of conduct are universally condemned for threatening the social fabric and therefore criminalized everywhere. Cases of hard sex occur in different forms in addition to Rape and sexual assault.
One of the cases of hard sex in addition to Rape is indecency or Lewdness. Indecency refers to exposing another person’s nakedness or other public sexual activity intended to shock, insult or arouse onlookers (Williams, 1992). According to National Criminal Lawyers, indecency can occur in three forms. These forms include exposing oneself before a minor, Sexting nude photos of oneself to another person, and sexual pretense. Besides, Indecent exposure (exposing one’s genitalia in public), lewd behavior (engaging in sexual activities where one is likely to be watched), and displaying obscene materials are all examples of what may be considered to violate this law in various states. Whatever name is given to it, this offense represents a flagrant disregard for social norms. Any action morally reprehensible or harmful to community standards can be considered immoral and hence be subject to this allegation (Williams, 1992). It’s possible that performing a sexual act on a public beach may be regarded as open indecency or public Lewdness, depending on the specific laws of the location in question. Confinements enforced under indecency statutes are situational. However, many countries give a limited exception to public beaches or strip clubs. Some local laws prohibit strip clubs entirely, while others require performers to keep at least six feet away from clients.
Another case of hard sex aside from Rape and sexual assault is prostitution. Prostitution refers to the act of both soliciting and accepting payment for sexual services offered or performed. Prostitution is prohibited in all states in the US except Nevada, and even there, it is confined to specific areas and subject to stringent laws (Get Legal, 2022). Both the broker (those who advertise a prostitute’s services) and the client (those who hire her) are subject to the law regarding prostitution. Solicitation occurs whenever one indicates a willingness to pay another person for sexual services, regardless of whether or not the transaction occurs verbally. For that reason, solicitation of prostitution is inferred from actions such as getting cash from an ATM and giving it to a prostitute. The argument for making it illegal to buy sex first rests on the idea that it is exploitative and degrading to sex workers (Bazelon, 2008). The opinion holds that when prostitution is legalized, it grows exponentially, benefits pimps rather than women, and causes more violence in back alleys rather than less.
Lastly, engaging a minor in sexual activities such as photography and soliciting them for sex in person and online is a sexual offense. Various sexual acts that involve a juvenile are prohibited by both federal and state law. It is illegal on federal and state levels to create, distribute, or merely have pornographic materials that depict a juvenile in a sexually explicit context. Criminal penalties for distributing or accessing child pornographic content online are increasingly based on existing child pornography statutes (Find Law, 2016). Punishment for violating federal laws against child pornography is severe. Persons convicted of making child pornography for the first time get a prison term of 15-30 years. Those found possessing child pornography on their computers face severe penalties, including incarceration. Violent offenders may face prosecution at either the federal or state level (or both.
References
Bazelon, E. (2008). Why is prostitution illegal? Slate Magazine. Web.
Dougherty, T. (2013). No way around consent: A reply to Rubenfeld on “rape-by-Deception.” Web.
Find Law. (2016). Child pornography laws. Findlaw. Web.
Get Legal. (2022). Sex crimes. GetLegal. Web.
Rubenfeld, J. (2010). The Riddle of Rape-by-Deception and the Myth of Sexual Autonomy. Yale Law Journals, 13(03), 673-696. Web.
Williams, G. (1992). The meaning of indecency. Legal Studies, 12(1), 20-33. Web.
Zhuang, J., & Liu, X. (2022). Solving the myth of rape-by-Deception: Based on the restatement of sexual autonomy. Beijing Law Review, 13(03), 673-696.