Abstract

To date, no federal court has recognized women's constitutional right to be free from sexual assault by a state official acting under color of state law. Last term, in United State v. Lanier, the Supreme Court remanded the issue to the Sixth Circuit for consideration. This Essay maintains that sexual assault is clearly a constitutional crime when committed by a state actor. Rather than relying on the Fifth Amendment's protection of bodily integrity, this Essay argues that the right to be free from state-imposed sexual assault is most appropriately found within the framework of substantive due process. Because substantive due process protects against state interference with decisions about whom to marry, whether to terminate a pregnancy, and whether to conceive a child, it logically must protect against state interference with the decision about whether, and with whom to, have sexual relations. Approaching the issue of sexual assault in this manner also focuses needed attention on the fact that rape, like other substantive due process violations, is fundamentally a violation of the victim's decision making capacity, her personal autonomy. Finally, this Essay posits that recognizing sexual assault as a constitutional violation when committed by a state official acting under color of state law would not impermissibly destroy any of the carefully drawn lines of federalism.

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