The Problematic Treatment of Sex Exceptionalism in Criminal Law

Aya Gruber, Sex Exceptionalism in Criminal Law, 75 Stanford L. Rev. (forthcoming)

 Sex crimes are the worst crimes. People widely believe that sexual assault is graver than nonsexual assault, uninvited sexual compliments are worse than nonsexual insults, and sex work is different from work. Criminal codes create a dedicated category for sex offenses, uniting under its umbrella conduct as different as violent attacks and consensual commercial transactions. This exceptionalist treatment of sex as categorically different rarely evokes discussion, much less debate. However, sex exceptionalism is not natural or neutral, and its political history should give us pause. This Article is the first to trace, catalogue, and analyze sex exceptionalism in criminal law. Through a genealogical examination of sex-crime law from the late eighteenth century to today, it makes several novel contributions to the debate over how criminal law should regulate sex.

First, the Article casts doubt on the conventional account that rape law’s history is solely one of sexist tolerance—an account that undergirds contemporary calls for broader criminal regulations and higher sentences. In fact, early law established rape as the most heinous crime and a fate worse than death, but it did so to preserve female chastity, marital morality, and racial supremacy. Sex-crime laws were not underenforced but selectively enforced to entrench hierarchies and further oppressive regimes, from slavery to social purity. Second, this history suggests that it is past time to critically examine whether sex crimes should be exceptional. Indeed, in the 1960s and 70s, the enlightened liberal position was that rape law should be less exceptional and harmonized with the law governing “ordinary” assault.

Third, the Article spotlights the invisible but powerful influence sex exceptionalism exerts on scholarship and advocacy. Despite the liberal critique, sex exceptionalism flourished, and today it is adopted without hesitation. Sex dazzles theorists of all types. For sex crimes, retributivists accept exorbitant sentences, and utilitarians tolerate ineffective ones. Critics of mass incarceration selectively abandon their principled stance against expanding the penal state. Denaturalizing sex exceptionalism and excavating its troubling origins forces analysts to confront a detrimental frame underlying society’s perpetual enthusiasm for punitive sex regulation.