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Brooklyn Law Review




For more than a century, courts, legislatures, and legal commentators have struggled with the controversial and highly charged question of whether accomplishing sexual intercourse by means of fraud or coercion is blameworthy and appropriately condemnable as rape. In 1986 Professor Susan Estrich suggested that rape law should "prohibit fraud to secure sex to the same extent we prohibit fraud to secure money, and prohibit extortion to secure sex to the same extent we prohibit extortion to secure money." (Susan Estrich, Rape, 95 Yale L. J. 1087, 1120 (1986)). Such suggestion spawned the latest cycle of discussion about this age-old conundrum in the American legal academic community. As the cases proliferate and the intellectual debate in response to Estrich's suggestion rages on, state legislatures, riding the successive waves of rape reform of the 1950s and 1970s, have been quietly enacting a comprehensive array of criminal statues outlawing multiple forms of sexual offenses committed by fraudulent or coercive means. The potential criminalization of rape by fraud and rape by coercion is, however, a difficult and troublesome legal development for a myriad of reasons. First, cases involving such acts pose significant definitional challenges for the crime of rape, inevitably implicating the debate over whether it is a crime of violence or a sexual offense and the concomitant issue of the proper function of rape law as either protecting citizens' physical security or, more broadly, sexual autonomy. Second, because these cases generally involve factual scenarios in which physical force is absent and consent, in some form, is present, they strike at the doctrinal heart of rape law, raising issues like: the appropriate relationship between the elements of force and nonconsent, the necessity of physical force, and the parameters of legally effective consent. Third, discussion of these offenses often "trigger[s] common prejudices about the behavior of men and women in sexual encounters" (Martha Chamallas, Consent, Equality, and the Legal Control of Sexual Conduct, 61 S. Cal. L. Rev. 777, 832 (1988)) and reinvigorates colloquy about rape victims' culpability and trustworthiness, deflecting attention from what should be the real question -- the criminality of defendants' conduct. In short, consideration of these offenses pushes the envelope of rape law's function in regulating the outermost limits of sexual encounters in our society.