Rubenfeld’s Big Step Backward in Rape Law

Earlier this year Jed Rubenfeld authored, in the Yale Law Journal, one of the strangest articles about rape law that has ever been written. While it is often a mistake to draw unneeded attention to dangerous ideas, a response to the piece is warranted because of Rubenfeld’s privileged position as a professor at Yale Law School and the high-profile forum in which he published. I hope the article I have written addressing Rubenfeld’s scholarship offers at least part of the reply that is necessary.

Under even a charitable reading of Rubenfeld’s article, he advocates the legalization of approximately 90% of rape in America. Rubenfeld supports removing the nonconsent element and implementing a new force requirement which would be even more difficult for prosecutors to meet than existing statutory provisions. He writes: “sex is rape whenever exacted through the kind of force that turns labor into slavery: roughly speaking, physical incapacitation, whether through restraint or imprisonment, or serious physical assault (or the threat of either).” If Rubenfeld’s proposal were implemented, it would legalize almost all acquaintance rape (where such a high level of force is rarely used) and rape by virtue of a victim’s excessive intoxication. Indeed, Rubenfeld is even willing to entertain the idea that rape of an unconscious victim is not necessarily criminal when he writes:

“But really: is it so clear that all unconscious sex should be criminal? Among well-settled couples, long used to sharing the same bed, sexual contact of various kinds with a sleeping person is common. No one thinks all such touchings are criminal. Doesn’t this undermine the idea of an ipso facto rule against sexual contact with the unconscious?”

Rubenfeld wants almost all of the gains of the rape law reform movement undone and would make the law worse in certain aspects than it was in the middle of the Twentieth Century. Rubenfeld’s position in supporting retrograde rape policy is not unusual. Indeed, since the run up to the 2012 elections, the following phrases were uttered by politicians:

“So the way [my father] said it was, ‘Just remember, Roger, some girls, they rape so easy. It may be rape the next morning.’” – Wisconsin State Representative Roger Rivard

“And even when life begins in that horrible situation of rape, that it is something that God intended to happen.” – United States Senate candidate from Indiana Richard Mourdock

“In the emergency room they have what’s called rape kits where a woman can get cleaned out [and not get pregnant]” – Texas State Senator Jodie Laubenberg

and, of course:

“It seems to be, first of all, from what I understand from doctors, [pregnancy from rape is] really rare. If it’s a legitimate rape, the female body has ways to try to shut the whole thing down.” – United States Senate candidate from Missouri Todd Akin

I mention these comments because they add context to Rubenfeld’s article. Indeed, among all of those positions, Rubenfeld’s may be the least defensible. Rubenfeld does not support acquaintance rape decriminalization because he is concerned about innocent men being convicted. He is not driven by beliefs about abortion that intersect with discussions about rape. He is not writing out of a mistaken understanding of rape kits and pregnancy. Rubenfeld supports his regressive turn in rape law only in the name of doctrinal coherence. His hope is merely to resolve what he sees as a doctrinal inconsistency in not punishing rape-by-deception. And it is just the so-called “riddle” that is at issue (and not concern about actual cases of rape-by-deception) because Rubenfeld’s solution leaves the present law in such cases intact.

There are many more problems with Rubenfeld’s piece (such as ignoring or misreading almost all feminist legal scholarship regarding rape in the last twenty-five years). I ultimately decided to write a full-article length response to document and correct Rubenfeld’s extensive errors while addressing his one potentially valuable contribution (refocusing on the foundational values of rape law). It is rare that this can be said about law review scholarship, but Rubenfeld’s article is genuinely dangerous and Yale Law Journal should be ashamed to have published it.

I want to add just one more bit of context for Rubenfeld’s article. Yale University was the recent target of a Title IX claim, which it ultimately settled, because of sexual assault and rape culture problems. From fraternity members chanting “No means yes, yes means anal” while marching around campus to a “preseason scouting report” of prospective women on campus, Yale has been at the center of recent attention regarding campus rape culture. Earlier this year, Yale failed to expel any of the students who were found guilty of sexual assault against other students. Just months after Rubenfeld’s article was published, the campus issued its new policies regarding sexual assault on campus. Already, these policies are the subject of reactionary backlash. Rubenfeld’s article unfortunately contributes to the Yale’s rape culture problem by providing intellectual cover to those who want to maintain a hostile sex environment at the school.

-Corey Rayburn Yung