Optimizing Criminalization in the Law of Rape and Sexual Assault: A Response To Chadha and Tolley

Abstract This is a response to commentaries by Karamvir Chadha and Rachel Clement Tolley on my book Criminalizing Sex: A Unified Liberal Theory . I sought there to develop a vision of the criminal law that would “contain provisions that adequately criminalize all cases in which an offender subjects a victim to nonconsensual sex but do so without criminalizing any cases involving sex that is genuinely consensual or aconsensual and would not adversely impact third parties.” Chadha argues that my stated goal of not criminalizing genuinely consensual sex is inconsistent with my receptivity to the “affirmative consent” rule, as well as to the criminalization of violent, though consensual, sadomasochistic sex. In response, I argue that the goal of never criminalizing genuinely consensual sex is meant to be an “ideal,” and that, given problems of proof, any real-world system of criminal justice may have to accept the possibility that some false positives, in certain kinds of situations, should be criminalized, as a cost of preventing too many false negatives from escaping liability. In addition, I explain why my approach to criminalizing violent, though consensual, SM is not, as Chadha claims, inconsistent with my explanation for why we should think of sexual assault as involving a different sort of wrong than nonsexual assault. Tolley, in her essay, responds to my discussion of the crime of rape by deceit. In my book, I had argued that defining that offense too broadly would create negative side effects, such as diluting the stigma of rape, chilling socially positive sexual encounters, and creating uncertainty about exactly which conduct is prohibited. Tolley does not disagree with this diagnosis, but she differs with respect to its cure. Rather than focusing on the relative wrongfulness of the underlying deception (its “content”), she thinks that we should focus instead on what she calls its “form.” Here, she distinguishes among, for example, literally false statements, literally true but misleading statements, and nondisclosures of material information. I argue that Tolley’s analysis, though nuanced, is too complex to have much practical value, and that a better approach would be a simpler one, which focuses on types of deceit generally recognized by society as “more serious.”