The recent wave of law reform on sexual crimes,Footnote 1 amending the definition of rape to consent-based rather than coercion-based, constitutes an important development in criminal law and an advancement in human rights in Nordic countries, as elsewhere in Europe. Despite these legal changes, it is unlikely that the question of the necessary, just, or desired level of protection for sexual autonomy has been resolved at the national or international level, as human rights norms fail to specify exact requirements for the protection of sexual autonomy, leaving unanswered practical questions about how to treat different kinds and levels of violations of sexual autonomy in the criminal law. Where might one find such answers? Many common law scholars have found it eye-opening to consider how much more extensive and easily accepted the protection of property is in criminal law when compared with sexual autonomy. In human rights tradition, however, such a comparison can be seen as either inconsistent with the human rights framework or redundant.
The purpose of this article is to find a thought framework that allows us to compare sexual crimes and property crimes without reducing people to objects or forgetting about human dignity. Two points are crucial for attaining this goal. First, a comparison differs from modeling one thing on another and from analogical reasoning, which proceeds from a source domain and maps the target domain onto it. In model building and analogy, one thing is primary, the other secondary. By contrast, a comparison does not imply an order; it is symmetrical. Second, property crimes should be conceived as crimes against autonomy rather than crimes against property or ownership. Thus, the essential point of comparison becomes autonomy itself: sexual autonomy and autonomy over property.
It is not the purpose of this article to draw a systematic comparison between sexual crimes and property crimes but, instead, to encourage the use of such a comparison in a human rights tradition by showing how it can be consistent with human dignity. The analysis is intended to be universal in the sense that it does not commit to any particular jurisdiction or its definitions of either property crimes or sexual crimes. Inevitably, some examples will not hold in a particular jurisdiction, but this should not detract from the overall argument. I begin by outlining two approaches to examining sexual crimes: through human rights and comparisons with other crimes. This article is an attempt to combine these two seemingly conflicting approaches. In order to further justify the comparative approach, I examine how property crimes and sexual crimes share a legal framework that makes sense of the comparison. The legal framework for physically violent crimes, another frequent point of comparison, is different. After that, I scope out the features of autonomy that make the comparison illuminating. Autonomy should be understood as an enabler of human interaction, not a barrier, and it is scalar, relational, and multidimensional. I then explore how autonomy relates to property rights and how property relates to the body. After that, I consider how the differences between sexual autonomy and autonomy over property might be taken into account. Finally, I draw conclusions about the kinds of questions the comparison could help answer.
A. The Search for Answers
Legal amendments towards consent-based rape laws in Europe have followed in the wake of the Istanbul Convention (2011),Footnote 2 high-profile rape cases, and social movements like #MeToo; although the obligation to criminalize non-consensual sexual acts already existed since the interpretation of the European Convention on Human Rights in M.C. v. Bulgaria (2004)Footnote 3 and the interpretation of the Convention on the Elimination of All Forms of Discrimination against Women in Vertido v the Philippines (2010).Footnote 4 While the wordings of the amendments differ—the laws in Iceland, Denmark, and Greece referring to the lack of consent, the laws in Sweden and Finland referring to non-voluntary participation, and the law in Germany referring to a sexual act against the victim’s will, for example—they all aim to protect the same right: sexual autonomy. A doctrinal analysis or an evaluation of the relative merits of different legislative choices is beyond the scope of this article but should not distract from its argument.
However, human rights norms fail to specify exact requirements for the protection of sexual autonomy, leaving unanswered practical questions about how to treat different kinds and levels of violations of sexual autonomy in the criminal law. Does non-consent have degrees, or are there other types of violations of sexual autonomy besides that based on the lack of consent? Does fraud, enticement, the victim’s vulnerability,Footnote 5 or the abuse of a position of powerFootnote 6 vitiate consent?
The treatment of such situations differs considerably between the Nordic countries’ laws.Footnote 7 The variation suggests that our understanding of sexual autonomy and its violations has not yet become consolidated. For example, in Sweden, abusing the victim’s dependence on the perpetrator was incorporated within the definition of non-voluntariness. By contrast, in Finland, only the “severe abuse” of a “special position of power” due to which the victim cannot formulate or express their will constitutes non-voluntariness. Sexual abuse remains a separate crime with a detailed list of the kinds of situations in which the abuse of a position of power is criminalized. In Denmark and Iceland, the abuse of a position of power is criminalized in several different provisions covering sexual interaction with incarcerated people, with people residing in other institutions, or with a person who is dependent on the perpetrator for money, work, medical treatment, or other care. Thus, in Finland, Denmark, and Iceland, the abuse of power does not categorically preclude the possibility of consent or voluntariness but nevertheless constitutes a violation of sexual autonomy even when it does not amount to non-consent or involuntariness.
Such differentiation has attracted criticism. For example, the Group of Experts on Action against Violence against Women and Domestic Violence (GREVIO), in its baseline evaluation report on Finland, stressed that the “fact that the act is carried out without the consent of the victim is the point which punishment shall hinge upon, whether this is committed by someone who employs violence or abuses their position of power over the victim,” and warned Finland “against the creation of a hierarchy of victims on the basis of their characteristics such as young age, helplessness, dependence, illness or other circumstances,” because “rape is rape.”Footnote 8 The critique could be read to mean that the abuse of power or vulnerability always vitiates consent and that non-consent does not have degrees, but this approach has difficulties, which will be discussed later. A desire to find a contextualized way to analyze different legal approaches to such cases has motivated this article.
Conaghan criticizes the tendency to approach the central questions of rape law, including attempts to draw the boundaries of rape by seeking a universal “essence” to the crime. She calls for our understanding of rape to be contextualized and for shifting the focus from “abstract speculation about what rape is” to “honest, creative, and constructive engagement with the role of law in regulating sexual misconduct.”Footnote 9 This article suggests that, as a contrast and addition to “abstract speculation,” we might turn to a comparison with other crimes, especially property crimes.
Many common law scholars have found it eye-opening to consider how much more extensive and easily accepted the protection of property is in criminal law compared with sexual autonomy. For example, in 1986, in her essay “Rape,” Estrich wrote, “Much that is striking about the crime of rape—and revealing of the sexism of the system—emerges only when rape is examined relative to other crimes.”Footnote 10 According to Estrich, the legal process operates on a presumption that men are entitled to access to women’s bodies, while no equivalent access has been granted to women’s houses or wallets. The law does not require the victim of a robbery to resist, unlike the victim of rape. “Passive submission” or even “contributory negligence” does not amount to consent in a robbery, theft, or trespass, but it does in rape.Footnote 11 About a decade later, in “Unwanted Sex,” Schulhofer remarked:
We live in a world in which the law vigorously protects all of us against force, stealth, abuse of authority, and deception that impair our control over our property. We live in a world that never for a moment entertains the idea that a victim’s gullibility or “contributory negligence” lessens the criminal responsibility of a person who takes advantage of the situation by intimidation, extortion, or abuse of trust. Yet when women seek comparable protection for their bodily security and sexual integrity, they are disparaged as pleading for special privileges or wallowing in victimhood.Footnote 12
In 2013, Rubenfeld highlighted a central inconsistency in rape law by reference to other areas of law:
[I]f rape is sex without the victim’s consent—as many courts, state statutes, and scholars say it is—then sex-by-deception ought to be rape, because as courts have held for a hundred years in virtually every area of the law outside of rape, a consent procured through deception is no consent at all.Footnote 13
Around the same time, Dsouza called for applying the framework of undue influence, developed in contract law and sometimes applied to property offenses in the context of sexual crimes.Footnote 14
Thus, comparing sexual and property crimes is not unusual in the common law tradition, but it is alien in the civil law tradition where the bases for criminalization are sought in human rights and property rights are considered separate from human rights. Rape and other sexual crimes directly subvert human dignity and are criminalized due to this subversion. Property rights are seen to have only an instrumental connection to human dignity; they are necessary for attaining security, freedom, equality, and an adequate standard of living,Footnote 15 but ordinary property crimes do not directly threaten human dignity. A comparison of sexual crimes and property crimes is, therefore, considered inconsistent with a human rights approach. Alternatively, it can be thought to be redundant because the essence of rape or what is “at stake” can better be captured by direct reference to human rights.
The potential critique against comparing sexual crimes and property crimes is similar to that levelled against the property model of rape. In the property model of rape, our bodies are equated with property and our autonomy with ownership, which is inappropriate for the protection of sexual autonomy.Footnote 16 For example, Russell has argued that the 2003 Sexual Offences Act of England and Wales has failed to protect women because rape is conceived of as a wrong in “the property of the person.” This masks the essential harm of rape as a violation of personhood itself.Footnote 17 The critique stresses the centrality of the things that make us human: our subjectivity, inviolable dignity, and intrinsic value.
B. Tolerated Until Proven Prohibited
Some might consider sexual crimes extraordinary, beyond comparison, but this seems misguided for several reasons. First, all crimes share the general rules and principles of criminal law, and there is thus no reason why there should not be parallels between sexual crimes and other crimes. Second, rejecting any comparisons can contribute to the damaging myth that rape is incomparably bad, sometimes even “worse than death.” The myth can frustrate attempts to analyze rape, exacerbate the harm of rape, and hamper the recovery of rape survivors.Footnote 18
Property crimes present a better point of comparison to sexual crimes than physically violent crimes due to the structure of the criminal law in Nordic countries. Physical violence is considered prohibited per se: the prosecution must only prove the presence of physical violence. The exercise of autonomy (for example, the presence of consent) can form a defense, but the burden of proof rests with the accused; physical violence is prohibited until proven permissible. By contrast, a violation of autonomy (for example, lack of consent) is an element of the actus reus of sexual crimes and property crimes. In the latter, the violation of autonomy is implicit in words such as “steal” or “deceive.”Footnote 19 Dsouza has convincingly argued that prior to evidence in a particular instance, “the act description ‘sexual penetration’ is neutral as to consent,” presumed neither consensual nor non-consensual.Footnote 20 Nevertheless, because the prosecution must prove the violation, the law in practice is not neutral; sexual interaction is, if not presumed permissible, at least tolerated until proven prohibited. Similarly, the prosecution must prove that a property transfer was not part of an autonomously chosen transaction or gift. Thus, there is a similarity in legislative technique regarding sexual violations and property violations, which does not exist for physically violent crimes.
In practice, the presumption of tolerability can sometimes be turned on its head by the context. For example, medically necessary surgery is generally presumed to be permitted, and the burden of proof lies with the patient to prove it was carried out against their wishes. Little proof is usually needed about the lack of consent when a stranger takes another person’s money without giving anything in return or about the presence of consent in an ordinary martial arts training session. Comparisons between sexual crimes and property crimes often highlight inconsistencies in how such presumptions arise in the criminal process; the threshold for inferring a lack of consent from the circumstances can be excessively high for sexual crimes. Estrich’s assertion that the legal process presumes men’s access to women’s bodies but not to their houses or wallets concerns such contextualized presumptions.
Some have suggested that all penetrative intercourse be criminalized, with consent forming a defense against penalty.Footnote 21 There are good reasons not to accept such a suggestion. First, this approach would criminalize acts that we do not consider wrong. There is an important difference between considering consensual sex to be criminal but defensible and thus not punishable and considering it to be non-criminal. Second, the approach would jeopardize the defendant’s rights. If sexual intercourse were criminalized per se, guilt could be inferred from intentional sexual intercourse alone, and the burden of proof for consent would rest with the defense. There may be situations that clearly call for an explanation from a defendant, and judicial decision-making inevitably relies on some presumptions and inferences. Still, these must be proportionate and maintain the rights of the defense.Footnote 22 Rape is a serious crime and is often difficult to prove, and there is no reason to think that proving one’s innocence would be easier. Reversing the burden of proof would thus seriously violate the rights of the defendant.
The difference in the legal approach between sexual interactions and property transfers, on the one hand, and physical violence, on the other, stems from a difference in the underlying values being protected. The primary harmfulness of sexual crimes and property crimes results from the violation of autonomy. By contrast, even when the requirements of autonomy are satisfied, physical violence primarily engages other values, especially the protection of health. Thus, autonomy is not an overriding value justifying the endangerment of others, even in the realm of human rights.Footnote 23 For example, in Laskey v the United Kingdom, the European Court of Human Rights maintained that physical violence can be prohibited even when consensual, on the grounds of protection of health, when the violence involves or risks a significant degree of injury or wounding, even if no permanent harm is sustained or medical attention required.Footnote 24 Consider the phrases “B sexually penetrated me,” “B has my wallet,” and “B hit me.” The first two raise questions about context (consent), but the third feels immediately wrong. This intuition tracks the logic of the underlying wrong.
Nevertheless, there is an apparent contradiction in the law’s approach to autonomy. Autonomy is thought to protect against interference; it requires that no one may touch our property or our bodies before obtaining permission. Yet the law treats sexual interaction and property transfers as tolerable until proven otherwise. The contradiction is partly due to the two assumptions operating in different relations: the first structures the relationship between people, and the second the relation of a person to the law. Fully dismantling the contradiction, however, requires us to consider the nature and purpose of autonomy in our lives.
C. Enabler-Autonomy
Autonomy means, roughly speaking, the opportunity to make decisions and carry them out according to one’s own preferences without interference from others.Footnote 25 The conditions of autonomy, or “self-governance,” have been much debated in philosophy and criminal law. The purpose here is not to examine these conditions, as the proposal is that at least some such conditions can be practically discovered through a comparison of sexual crimes and property crimes. It is, however, necessary to examine some central features of autonomy. Because sexual crimes and property crimes ultimately concern human interactions, I approach autonomy from the premise that what happens within a person’s mind—whether an actor can formulate second-order preferences, whether the reasoning is rational, deliberative, or responsive to values or second-order preferencesFootnote 26 —is not as important to autonomy as how a person and their mental processes relate to the external world. Thus, autonomy also requires freedom and the possibility to act.Footnote 27 A person’s mental processes may remain autonomous, but if they are unable to act accordingly, their autonomy is incomplete. For example, the rape victim who continually rejects the actions of the perpetrator and never submits, but is physically overpowered, has had their autonomy violated just as surely as a victim who is beaten into submission. The lack of respect for their decision-making provides the bridge from freedom to autonomy.
In the traditional approach, sexual interaction is seen as a boundary crossing, an interference with another person’s body that is permissible if it is autonomously chosen. Nedelsky has criticized the conception of people as bounded selves and of our rights, such as the right to autonomy, as boundaries. The metaphor of a boundary does not capture the role of autonomy in a modern society characterized by interdependence. Maximizing autonomy requires relations with other people. The person with the widest sexual autonomy is the one who has an opportunity to choose to share their sexuality with others—not the person who is “the most isolated.”Footnote 28 Thus, autonomy is not a condition that separates us from others but one that enables meaningful, benign, and mutually beneficial interaction. Thus, autonomy is relational.Footnote 29
The human rights framework also has two conceptions of autonomy. Traditionally, autonomy has been constructed as a protector of our negative rights, our rights to be free from interferences and violations.Footnote 30 This conception has been operationalized in, for example, the requirement to criminalize non-consensual sexual acts. By contrast, the enabling qualities of autonomy are tools of empowerment in the paradigms concerning children, people with disabilities, and women’s rights, for example.Footnote 31 The enabler-autonomy is evident in the right to sexual health: while no one can have an absolute right to sexual interaction with others, maximizing sexual health requires “a positive and respectful approach to sexuality and sexual relationships, as well as the possibility of having pleasurable and safe sexual experiences, free of coercion, discrimination and violence.”Footnote 32 Reconciling the two conceptions of autonomy is difficult, as one stresses insulating or protecting us from others, and the other requires maximizing our possibilities to interact with others. That project is beyond the scope of this article.
Besides relationality, two other qualities of the enabler-autonomy are important in comparing sexual and property crimes. First, autonomy is scalar. It is not “absolute independence” or “complete control,” a fragile and misanthropic construct that is violated whenever something or someone outside ourselves influences our decisions or actions. Such a conception of autonomy would be practically impossible because dependence and hierarchy are inevitable.Footnote 33 Nor is autonomy a robust creature capable of surviving except in the direst, threatening circumstances so that a person can be expected to resist interferences “to the utmost.” Rather, autonomy is a scale and can thus be affected to a lesser or greater extent, depending on the circumstances. We are all subject to the influences of social norms and the people around us, but depending on the strength of the influence, the circumstances, the resources available to us, and our personal capabilities, these influences affect our actions and experiences to different degrees. This makes autonomy fundamentally different from consent: consent either exists (is valid) or does not (is not valid). Suppose one is concerned with criminalizing non-consensual sexual acts. In that case, a differentiation of sexual offenses based on the mode of commission, such as that adopted in Finland, Denmark, and Iceland, appears illogical.Footnote 34 Yet autonomy is a broader concept than consent.Footnote 35 In the context of scalar autonomy, it would be illogical to group all violations of it under the same heading.
Second, autonomy is multidimensional. Its dimensions can be structured and termed in various ways.Footnote 36 The approach adopted here is guided by the typical comparison of sexual crimes with property crimes by their mode of commission, which encroach upon different dimensions of autonomy and is not intended as a comprehensive description of autonomy. Rape law and human rights norms on rape have traditionally focused on non-coerciveness and capability. The former refers to our freedom from harmful and threatening influences, while the latter refers to our physical, psychological, and, lately, social capabilities for decision-making and action. Thus, capability has traditionally encompassed questions such as the legal age of consent and total incapacity, such as a sleep state. Today, it also includes the broader idea of vulnerability, recognizing dependency, and making special provisions for vulnerable groups or persons.Footnote 37 Coerciveness in human rights law has expanded to include “coercive circumstances”, not only coercive behavior.Footnote 38
Autonomous decision-making suffers from inaccurate or outright false information, so autonomy includes an informational dimension. Informational autonomy is at stake in cases of deception. What is difficult to pinpoint is the relevance of freedom from affirmative influences like enticement.Footnote 39 Affirmative influences are an essential part of regular human interaction, but they affect decision-making and could be problematic for autonomy. Psychological research has demonstrated the effect of subtle influences on decision-making.Footnote 40 The impact on autonomy has been recognized in the rules of impartiality and the prohibition of bribery. Some sexual crime laws prohibit enticement in circumstances where the victim’s capacity for decision-making is reduced; for example, due to young age or disability.Footnote 41 How broadly affirmative influences in the sexual sphere should be criminalized remains an open question.
Non-coerciveness, capability, information, and freedom from affirmative influences describe prerequisites for autonomous decision-making. Autonomy can also be violated when the victim’s choice is not respected; for example, when a person has declined to participate or has not chosen at all. Typical examples would include proceeding with sexual activity or a property exchange, even though the other person says “no,” or using stealth to steal property or rape a sleeping person. In these situations, the victim’s decision-making may be autonomous, but their behavior is not. This dimension has gained strength in human rights norms on rape through the requirement that states criminalize non-consensual sexual acts.
The framework of relational, scalar, and multidimensional autonomy allows a contextualized comparison of sexual crimes and property crimes. Of interest is whether the standards of autonomy differ based on what we are trying to protect and, if so, on what grounds. First, it is necessary to consider the implications of the autonomy framework for property crimes.
D. My Body is Not My Temple
The relationship between sexual crimes and property crimes has been especially examined under the “property model of rape,” and the critique against this model is also relevant for comparing sexual crimes with property crimes without modeling one on the other.Footnote 42 The property model of rape treats the body as property, and by analogy, sexual autonomy must be self-ownership and sexual interaction a transaction. The most serious challenges to body-as-property, autonomy-as-ownership, and sex-as-transaction are ethical. A propertied notion of the self violates the Kantian categorical imperative of treating persons as ends in themselves.Footnote 43 Lacey, Russell, and Phillips criticize how the autonomy-as-ownership standard obscures the embodied and affective experience of rape and belittles the harm to the victim’s personhood.Footnote 44 The notion of sex as a transaction could be used to justify why a husband cannot rape his wifeFootnote 45 or to prevent sex workers from withdrawing their consent.Footnote 46 It is not my purpose to argue against these problems; objectifying the body is problematic. Rather, my task is to show that the comparison does not rely on the body-as-property, autonomy-as-ownership, or sex-as-transaction. For that, we must turn our attention to the nature of property rights.
A comparison of sexual and property crimes should not rely on a property model of rape but on an autonomy model of property crimes. Employed for the purpose of comparing sexual crimes and property crimes, this “model” will not be a comprehensive characterization of property, property relations, or property crimes but, rather, a collection of characteristics that can shape the comparison. These characteristics should be compatible with the principles of criminal law but are not tied to established theories of property in civil law. The characteristics examined here concern the notion of property itself, the kinds of property relations that are considered emblematic, and the value of autonomy over property.
I. An Extensive Notion of Property
As in human rights law on property, the autonomy model of property regards “property” as an extensive category relating to interests of monetary value or material objects, even when their monetary value is not at stake.Footnote 47 For example, theft and fraud provisions typically extend to funds in a bank account, a pecuniary interest that cannot really be characterized as “property,” and even less as “possessions,” and is not based on ownership but rather on the debt relation one has formed with the bank. Some crimes, such as trespass to property, do not engage monetary interests unless one considers it a lost opportunity to charge for access, but nevertheless engage an interest in autonomy over material objects. In some jurisdictions, such crimes would not be considered property crimes but crimes against privacy. Nonetheless, they fall within the remit of the autonomy model of property.
A system of ownership is an important way of regulating autonomy over property, but it is not the only one. Criminal law also includes provisions that govern monetary interests but would not typically be characterized as “property crimes,” such as bankruptcy crimes. These restrict a debtor’s autonomy over property they own to guarantee the “property” rights of creditors. Criminal law can also apply when the person whose autonomy is violated suffers no pecuniary loss; for example, when a fraudster convinces a person to leave them an inheritance. The central wrong is the interference with the autonomy of the person leaving the inheritance rather than the financial detriment to the person who would have been the deceased’s chosen recipient in the absence of fraud. The key concept of our property rights is thus not ownership but a decision-making right: autonomy.
II. Sharing as a Paragon of Property Relations
The transaction, the transfer of ownership, has become the paragon of property rights. The sale, or its criminal counterpart, the theft, is seen to characterize autonomy over property and its violations, and when these are considered the model for sexual crimes, sex becomes a transaction and rape becomes theft. There are many other ways to use our property, however, and a better paragon for property interactions would be the everyday action of sharing the use of one’s property.
Sharing property resembles autonomous sexual activity more than a transaction does for at least four reasons. First, the context of both sharing and sexual activity is usually a close relationship, and both, ideally, are manifestations of trust. Second, the motivation is more altruistic than the transaction, which is usually characterized by self-serving economic rationalism. Sharing does not rely on the expectation of a return. Thus, there is also a heightened expectation of respect. Third, what is important in sharing the use of the property is not (necessarily) the benefit gained but the sharing itself: for example, sharing a table to have a meal together or sharing a car to take a trip together. Gardner has argued that sex is good when it amounts to team activity. In team activity, both parties act together to achieve something together, with each other; one person does not do something to the other.Footnote 48 In the same way, one might say that property relations are good when they are characterized by joint activity and a shared goal rather than self-centered wealth maximization.Footnote 49 Although Gardner considers that consent can be unnecessary for team activity,Footnote 50 autonomy cannot. Fourth, and most importantly, autonomy (let alone “ownership”) is not relinquished during sharing. Because use rather than ownership is shared, the other party does not accrue rights or entitlements in respect of the object of autonomy (although they may contribute something to the interaction that is the object of their autonomy).
Emphasizing sharing over the transaction changes some of the usual comparisons. For example, Schulhofer claims that fraud in property transactions typically goes to the heart of the transaction: the promised return does not take place at all, or the objective value of the return is vastly disproportionate to the victim’s payment. In sexual fraud, where sex is obtained using fraudulent professions of love, promises of marriage, or other such lies, the value of the transaction depends on the victim’s expectations and attitude—whether she viewed the sex as an interaction valued primarily for itself or as part of a web of larger and more lasting interests. For Schulhofer, this justifies the non-criminal nature of sexual fraud.Footnote 51 However, when the notion of sex-as-transaction is rejected, the comparison with financial fraud no longer seems appropriate. Typically, the crime of fraud requires that the victim suffers economic detriment due to the fraud. A person who manages to sell a phone by pretending to be of the same religious denomination as the buyer will usually not be guilty of fraud if the phone matches the description, even though the seller’s religious background was material to the buyer. Thus, the autonomy of the decision is not protected separately from the value of the object of autonomy. In sharing, the outcome or “benefit” is not the most important, so the “value of the (trans)action” lies elsewhere. Sharing comes with a heightened expectation of trust and respect, which fraud vitiates. In such a context, what is the value of autonomy itself?
III. The Value of Autonomy Over Property
The value of sexual autonomy is usually seen as intrinsic. The value of autonomy over property is more contested. As a human right, the right to property is usually framed in terms of the right to decide about the use of one’s property for one’s essential needs and enjoyment.Footnote 52 It is heavily qualified, with public or societal interests providing reasons for the deprivation of one’s property. Its importance is linked to the possibility of attaining other values like security, freedom, equality, and an adequate standard of living.Footnote 53 In criminal law, the right to property guarantees the functioning of the economic system, even when a fundamental value, such as an adequate standard of living, is not threatened by the crime. The most obvious value of a right to property is thus its use-value.
Nevertheless, respect for autonomy over property has also been linked to dignity. For example, Atuahene has characterized the confiscation of property from Blacks in apartheid South Africa and other instances of dispossession as “dignity takings.” Dignity takings are a special class of property appropriation because they are a form of dehumanization perpetrated by the state.Footnote 54 Alexander draws the value constitution of property from dignity, which he describes as a “potential for autonomy and a right to develop that potential.”Footnote 55 He cites the example of Jacque v. Steenberg Homes, Inc., where a trespass incurred only nominal compensatory damages but high punitive damages. The company had trespassed against the vigorous protests of the Jacques, with the assistant manager displaying glee at the transgression in addition to intentional disrespect. Alexander considers the outcome correct because “Steenberg Homes had so flagrantly disrespected the Jacques’ dignity and undermined their flourishing.”Footnote 56 Thus, property violations engender an indignity that is separate from the value of the property.
While Alexander linked the trespass to dignity, the example also raises the question of the value of autonomy. Autonomy has more than mere use-value.Footnote 57 The enabler-autonomy is constitutive of our experiences in this world; therefore, a violation of sexual autonomy produces the “psychic and subjective impact,” which Russell claims is lost with a propertied notion of autonomy.Footnote 58 A violation of autonomy is an attack on the person, even if the autonomy extends to something other than ourselves, such as property. In the example above, the buyer of the phone probably feels cheated, even though the law does not recognize the violation of their autonomy as important enough to be criminalized. This is not the case for all property crimes. Criminal trespass can be committed through pretense and does not require economic detriment. It is autonomy itself that is seen as valuable. On this premise, Pundik and colleagues advocate criminalizing sexual fraud where the perpetrator actively lied, the deception was material to the decision-making, and the perpetrator knew that the deception was material.Footnote 59 Such an approach would have a comparison in criminal trespass to property.
The value of autonomy does not diminish or vary over time or due to the circumstances. Likening the body to property has elicited critiques about the value of virginity or the lack of a prior sexual relationship because unused property is more valuable than second-hand property.Footnote 60 Thinking through the lens of sharing, rather than transaction, can again help to disentangle the falsity of the parallel. The value of the action lies in the value of the autonomy for the person exercising autonomy rather than the value of the object of autonomy for someone else. The value of autonomy is not affected by how often autonomy has already been exercised. Moreover, the idea that the best exercise of autonomy is to exclude others and maintain something as “untouched” is at odds with a conception of autonomy as an enabler of meaningful and benign interactions. A decision to engage and not engage are equally valid and valuable exercises of autonomy.
Wertheimer claimed that “the distance between the (ugly) property model and the (attractive) autonomy model [of rape] is not very great.”Footnote 61 This is because property rights are also based on autonomy. Nevertheless, the differences between the autonomy approach and the ownership-to-property approach are important: under the former, our property need not be propertied, our property rights need not be ownership rights, and our property interactions need not be transactions. The autonomy-centered approach to property rights and property crimes focuses on who decides and controls the property. In the framework of the enabler-autonomy, the object of autonomy can be anything; it is the interference with autonomy that damages a person’s subjectivity and dignity. However, this does not mean that there are no differences between property crimes and sexual crimes.
E. Useful Differences
All comparisons are imperfect. The comparison between property crimes and sexual crimes revolves around the argument that at least one shared value is violated. Nevertheless, our interest in autonomy over property and sexual autonomy need not be of equal “size” for the comparison to make sense. It is obvious that, on the whole, sexual autonomy entails a more precious interest than autonomy over property.Footnote 62 The difference in our interest in maintaining our autonomy leads many to conclude that the comparison is inappropriate and devalues people. Gardner considers that a rape survivor who described her experience as “like being burgled” would be committing “a serious travesty” and showing “extraordinary moral insensitivity.”Footnote 63 One reason (albeit for Gardner, not the more important one) is that, according to Gardner, the analogy diminishes or trivializes the rape. Is that necessarily so? The rape victim who compared their experience to being burgled might well have meant, “It was like being burgled—only worse.” For someone who had not been raped but had been burgled, the comparison would indicate the interests at stake, even if the magnitude of the harm was different.Footnote 64 Evaluating the value of different types of autonomy can be an essential part of the comparison. A violation of sexual autonomy is a more intimate violation of autonomy, is more likely to be emotionally devastating, and entails violations of other important values; these differences are good reasons to protect sexual autonomy more stringently than autonomy over property.Footnote 65 The comparison can be used to show that such is not the case and to demand stricter rape laws.
Gardner’s second reason for the “extraordinary moral insensitivity” of the rape survivor’s comparison is that it ignores the primacy of the self over what one owns:
[P]roperty rights are necessarily the derivative or shadow case. One can analogize what happens to what one owns to what happens to oneself because what one owns can be an extension of oneself. But one cannot in the same way analogize what happens to oneself to what happens to what one owns, because oneself cannot be an addition to what one owns.Footnote 66
A comparison does not imply an order, unlike analogical reasoning. A comparison is symmetrical in that it does not make sense to say that “property crimes resemble sexual crimes more than sexual crimes resemble property crimes.” Property crimes and sexual crimes resemble each other equally. Asymmetry can arise when a third object, a point of comparison, is introduced. I argue that the point of comparison is autonomy. Property crimes epitomize ownership rights better than sexual crimes do, so ownership is not a useful or appropriate point of comparison. However, property and sexual relations epitomize autonomy to roughly the same extent. This makes autonomy an interesting point of comparison, even if property and sexual relations do not epitomize autonomy in exactly the same way. From this point of view, it makes sense to say that “rape is like burglary.”
Because the comparison does not demand that our interest in autonomy, or any other aspect of autonomy, is exactly the same in the two contexts, the comparison does not by itself involve a normative claim. Schulhofer calls the comparison of property crimes and sexual crimes “in equal parts suggestive and misleading”; the latter because we should not assume that the standards of impermissible interference with autonomy are the same in the two types of crimes.Footnote 67 But if we choose to protect sexual autonomy and autonomy over property in different ways and to different extents, we should provide reasoning for our choices. Such reasons could be ideological or practical. For example, Schulhofer considers that a weaker consensus on the rights and wrongs of sexual interaction, compared to those in property transactions, has resulted in an unwillingness to regulate the former. Although this by itself is not a sufficient reason for the weaker protection of sexual autonomy, such social disagreement is a relevant factor to consider in fixing the boundaries of criminalization in a democracy.Footnote 68 Property-related fraud often requires that the fraud be material to the value of the property. As has been argued above, such a requirement would not make sense in sexual relations. The autonomy itself is violated, rather than the “value of the transaction.” In defending their view that sexual fraud should be criminalized for the protection of autonomy, Pundik and colleagues nevertheless argue for practical restrictions on the criminalizations so as not to practically reintroduce the offense of adultery.Footnote 69 Recognition of the intrinsic value of autonomy could, however, also lead us to question our approach to property-related fraud.
Standards of autonomy can also differ due to the operation of other values. For example, repeated access to a piece of property may establish a claim on that property so that the owner’s right to autonomy is diminished. The same is not true of sexual autonomy. This is because claims to property on the basis of previous access, such as squatters’ rights, usually protect rights to essential goods in order to guarantee another aspect of human dignity. There is no alternative value that could justify a similar diminishing of sexual autonomy.
Reasons to adopt different standards of autonomy for sexual crimes and property crimes are particularly convincing if they result from differences in the nature of autonomy in the two contexts. For example, using sexual autonomy usually involves intimate use of our bodies, while we can use our autonomy over property without bodily action. Due to this more embodied nature of sexual autonomy, we cannot relinquish our autonomy over our bodies and sexuality, but we can and frequently do relinquish our autonomy over a particular piece of property. Another person cannot have a claim on or an entitlement to our body or sexual behavior but can have a claim on our property. Consequently, an expression of will regarding sexual interaction cannot be binding; we should have the right to change our minds about sexual encounters at any time before or during the encounter. The binding nature of expressions of autonomy over property justifies providing specific safeguards that may not be necessary for expressions of sexual autonomy. At the same time, other considerations, like the aforementioned greater importance and intimacy of sexual autonomy, may pull in the other direction.
F. Conclusion
This article was motivated by a desire to find a way to analyze the Nordic approaches to sexual interactions whose criminal characterization is variable or contested. I have proposed seeking comparisons between property crimes and sexual crimes to understand the nature and value of autonomy better. Key to the proposal are a relational, scalar, and multidimensional understanding of autonomy and a recognition of human autonomy as the basis for property crimes. Nevertheless, my proposal does not involve a normative claim that the standards of autonomy should be the same in property crimes and sexual crimes. Rather, criminalization should be sensitive to the differences between sexual interactions and property interactions.
The comparison raises questions about the extent of criminalized behavior, the content of criminal law. Why are certain violations of autonomy, such as deception, criminalized in relation to property interactions but not with regard to sexual activity? Moreover, the penal latitudes of property crimes establish a hierarchy between stealthy misappropriation, breach of trust, deception, and the use of violence as culpable ways of abusing someone, and the existence of such a hierarchy is rarely questioned. Should such a hierarchy not exist also in the realm of sexual crimes?
The comparison can also inform questions of legislative technique, the form of criminal law. For example, property crime definitions tend to be detailed and differentiated by modus operandi and type of property (robbery, extortion, theft, motor vehicle theft, embezzlement, fraud, credit card fraud, usury, unauthorized use, trespass, vandalism, intellectual property crime, insurance fraud, bankruptcy crime, and so on), while calls to enlarge the remit of criminalized sexual misconduct often rely on the expansion of a few labels (rape, sexual assault), using just a few concepts (consent, coercion). Comparing sexual crimes with property crimes should push the debate away from the latter kind of enlargement and the search for an essential concept towards detailing, differentiating, and contextualizing. Such differentiation remains visible in the Nordic laws, either in the subsections of rape or in the separate sections criminalizing sexual abuse and other violations. At the same time, consent or voluntariness can be seen as a uniting or interpretative principle. Do the Nordic countries need more rather than less contextualization to ensure comprehensive protection for sexual autonomy?
The comparison might also highlight blind spots in the legal system more generally. Is the law and the legal process bad at recognizing and accepting as abuse the sexual abuse of a position of power or the victim’s vulnerability—as many claim it is—because the abuse is sexual, or is it equally bad at recognizing abuses of property relations when they take place within a power imbalance, under conditions of vulnerability, or as part of a complex web of relations? I have sought to show that even within a human rights tradition, such questions can be meaningfully and appropriately approached through a comparison of sexual crimes with property crimes. Such engagement should be the topic of further research.
Acknowledgements
I would like to thank those who have provided comments on my thoughts and drafts for this article, in particular Sakari Melander, Tuomas Ojanen, Esko Yli-Hemminki, the organisers and participants of the Critical Legal Conference 2022, and the anonymous referees.
Competing Interests
Early in the writing process, the author was employed at or consulted for Amnesty International Finnish Section (2019–2021) and was on the board of the NGO Women’s Line in Finland (2019–2022).
Funding Statement
This work was supported by grants from Olga and Kaarle Oskari Laitinen Foundation, the Finnish Concordia Fund, the Emil Aaltonen Foundation, and the Finnish Lawyers’ Association (Suomalainen lakimiesyhdistys). Open access funded by Helsinki University Library.
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