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Abstract: In criminal law, the doctrines surrounding sexual consent and proximate causation are both thought to reflect conclusions about individual autonomy. But these doctrines diverge in striking ways. In rape law, the choice to consent to sex is deemed sufficiently autonomous even when made in response to threats or coercion, when induced by fraudulent misrepresentations, or when produced by mental impairment. By contrast, the doctrine of proximate causation holds that choices made in response to force, coercion, fraud, or mental impairment are insufficiently autonomous, and therefore an individual is not morally responsible for any resulting consequences. This divergence invites a crucial question: Does the law of proximate causation capture something important about individual autonomy that has been overlooked in the law of sexual consent? After all, sexual consent frequently plays a causal role in normatively desirable sexual encounters. Yet the structure of U.S. rape law elides any inquiry into causation. Might rape law be improved—might it better protect individual autonomy—by demanding that sexual consent be a proximate cause of sex itself?
This Article is the first to raise this question and undertake this inquiry. By juxtaposing consent and causation in criminal jurisprudence, it reveals an inconsistency in the understandings of autonomy that motivate those doctrines, shedding new light on longstanding criticisms of rape law. This Article then makes a preliminary case for reforming rape law by recasting sexual consent as a matter of proximate causation. It offers three grounds for doing so: First, philosophical accounts of sexual autonomy require an individual to be able to control the character and circumstances of sexual contact, a requirement that is only vindicated when consent causally contributes to sexual activity. Second, the best understanding of consent’s exonerating role in sex is that consent alters another person’s reasons for acting, a function that can only occur when consent causally motivates sexual behavior. Lastly, the leading accounts of when sex is normatively desirable rest on a conception of mutuality—that is, responsiveness to the other person’s active consent. In short, this Article advances the novel claim that sexual activity is normatively desirable when it occurs because it is consented to, not merely whenever it is consented to.
The Article concludes by considering how rape laws may be reformed to leverage the normative insights just uncovered. It first examines the recent revisions to the sexual assault provisions of the Model Penal Code adopted by the American Law Institute in 2022. Those revisions, for the first time, included both requirements of causation and requirements of nonconsent. But the Model Penal Code’s revisions hew too closely to traditional rape laws, ultimately failing to capture the broad spectrum of normatively undesirable sex that warrants criminalization. The Article instead reconfigures rape as primarily a result crime, prohibiting specific wrongful means of causing sexual intercourse and exonerating sex when consent is the proximate cause. A rape law structured around the causes of sexual intercourse may best capture our normative intuitions about why and when consent matters.
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