Abstract
In Criminalizing Sex, Stuart Green wisely eschews any attempt to fully analyse the problem of ‘sex-by-deception’ in a single chapter, instead offering a ‘basic framework’ for determining whether an expansion of the law of ‘rape by deceit’ might be justified. In this article, I offer a revision to that framework. Green begins from an account of rape centred on the right to (negative) sexual autonomy and seeks to reject an expansionist account under which any deceptions and mistakes could vitiate consent to sexual activity. Sharing these starting points, I argue, pace Green, that variations in the harmfulness and wrongfulness of different deceptions cannot ground content-based restrictions on consent-vitiating deceptions. I argue that whilst different kinds of deceptive practices might wrong V to a greater or lesser extent, these variations lead to content-neutral, form-based restrictions on consent-vitiating deceptions. Moreover, whilst variations in the harms of D’s conduct are unlikely to ground a coherent set of content-sensitive restrictions on consent-vitiating deceptions, the harms of criminalisation differ depending on the content of the deception in question and this might lead to content-based restrictions on liability. However, an analysis of the variable costs of criminalisation is not obviously connected to the moral concept of consent-validity. Accordingly, whilst I suspect that both form and content-based restrictions on consent-vitiating deceptions are warranted in this area, the justification for the latter is unlikely to lie within an analysis of consent-validity itself, or the varied harmfulness and wrongfulness of D’s own conduct.
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1 Introduction
Where C agrees to sexual activity with D, but is mistaken about important information upon which that agreement is based, does the sexual activity in question take place without C’s consent?Footnote 1 In Criminalizing Sex, Stuart Green wisely eschews any attempt to fully analyse the problem of ‘sex-by-deception’ in a single chapter, instead offering a ‘basic framework’ for determining whether an expansion of the law of ‘rape by deceit’ might be justified. That framework begins by distinguishing between negative sexual autonomy (‘the right not to engage in, or be subject to, one or another form of sexual conduct’) and positive sexual autonomy (‘the prima facie right to engage in such conduct’),Footnote 2 and places the violation of negative sexual autonomy at the heart of the non-consensual sexual offences. Green nevertheless rejects the ‘expansionist approach’, according to which any and all deceptions might be capable of vitiating consent.Footnote 3 Green is not alone in simultaneously conceptualising the rationale of rape and sexual assault as the protection of the negative right to sexual autonomy, and defending an approach which identifies only some deceptions as consent-vitiating.Footnote 4 We might describe this as a ‘restricted’, as opposed to an ‘expansionist’, autonomy approach, under which all deceptions would be capable of vitiating consent, provided C would not have agreed, had she known the truth.
Theorists who accept the violation of the right to negative sexual autonomy as the relevant wrong of rape and sexual assault,Footnote 5 but reject the expansionist approach, face a formidable challenge in explaining this restriction of liability to only some sexual deceptions.Footnote 6 Given the individualistic nature of sexual autonomy, it is not clear why deception about X should vitiate consent, but not deception about Y, where all else is equal, including the importance of the relevant information to C’s decision to engage in sexual activity.Footnote 7 Such ‘objective’, or ‘content-based’, distinctionsFootnote 8 between deceptions which vitiate consent and those which do not have been described as ‘moralistic’.Footnote 9 This objection is perhaps better understood as an equality concern.Footnote 10 If only some deceptions are relevant to consent validity in the criminal law then the result is the identification of a range of individuals whose right to sexual autonomy is entirely insensitive to their genuinely held preferences, even if they are ‘dealbreakers’.Footnote 11 This would invariably include those with idiosyncratic dealbreakers (hair colour, for example) but, on Green’s account, this would also include individuals who do not wish to engage in sexual activity without a condom if their partner has a transmissible diseaseFootnote 12—hardly unusual or idiosyncratic. Even if such an individual clearly and explicitly stipulated the conditions upon which their consent were given, D’s deception would be legally irrelevant. A restricted approach based on the content of the deception in question thus leaves individuals entirely free (legally, at least) to lie about their sexual partner’s known dealbreakers, in order to obtain sexual gratification, provided they can find an individual whose dealbreakers concern information falling on the ‘valid consent’ side of the line. The charge of ‘moralism’ gains purchase in the effective imposition of a normative view of sexual decision-making through the privileging of some dealbreakers over others. Of course, differential treatment is not always unjustified, and a line-drawing approach need not be moralistic. Nevertheless, this concern lurks in the background of debates around the expansionist approach.
Green argues that sexual autonomy and deceit are scalar concepts and that it is not ‘moralistic’ or otherwise improper to identify consent invalidity by reference to normative analysis which is sensitive to the fact that some cases of sex-by-deception are more harmful and wrongful than others. On this basis, he begins to sketch out content-based restrictions on the kinds of deceptions which will be sufficiently harmful and wrongful to vitiate consent to sexual activity.Footnote 13 I am sympathetic both to the argument that rape and sexual assault are centrally concerned with the protection of negative sexual autonomy, and also that the expansionist approach to rape and sexual assault is too broad. However, pace Green, the scalarity of autonomy and deception will not lead us to content-based restrictions on consent validity, even if the harmfulness and wrongfulness of sex-by-deception is variable.
Green is right to claim that sexual autonomy and deception are scalar. Whilst the (in)validity of consent is a binary matter,Footnote 14 consent can only be determined by identifying the threshold at which we make the normative judgment that ostensible consent is not valid.Footnote 15 The exercise of autonomy is often, if not always, constrained by something. Our decisions may be more or less autonomous. We may have a greater or fewer number of options from which to choose, and those options may vary in quality and desirability. Our options and our ability to choose between them may be constrained to a greater or lesser extent. To describe a decision as autonomous or not is, therefore, unhelpful. What matters is whether a decision is sufficiently autonomous.
Of course, there is great difficulty in determining the precise point at which the constraints under which C operates render ostensible consent invalid.Footnote 16 This is a challenge for moral theorists as much as it is lawyers, but lawmakers and courts face unique difficulties in balancing context- and person-sensitivity with predictability and the rule of law. To some extent, this lies external to the autonomy analysis: mens rea requirements can, for example, be used to ensure fair warning and ensure that D is not condemned for acting upon honest and/or reasonable beliefs in consent.Footnote 17 Lawmakers need also to compare reasons in favour of criminalisation with reasons against, accounting for the costs of criminalisation (including harms caused by the prohibition of conduct, as well as its punishment).Footnote 18 The prior challenge, however, lies internal to the sexual autonomy analysis: at what point do the constraints on autonomy invalidate (moral) consent?Footnote 19
In Part I, I argue that content-based restrictions on liability might arise from an analysis of the varied harms of criminalisation but do so externally to the autonomy/consent analysis. In Parts II and III, I show that the relative wrongfulness of sexual deception can lead us to restrictions on consent validity, but these restrictions are based on the form of the deceptive practice, rather than the content of the deception itself. Ultimately, whether attendant upon variations in harmfulness or wrongfulness, the route to content-based restrictions on liability for sex-by-deception lies external to the consent/autonomy question.
2 The Unhelpfulness of Harm
The harms of rape and sexual assault are widely variable,Footnote 20 encompassing pain; physical and psychological injury; feelings of fear, shame, guilt, or disgust; and the erosion of trust in others which can inhibit the pursuit of fulfilling sexual and romantic relationships. It seems plausible to assume that deceiving someone about information that is, for them, a ‘dealbreaker’, thereby inducing their assent to sexual activity, will at least risk some kind of harm, understood in this broad sense. As such, it would be ad hoc and ill-principled to distinguish between ‘more’ and ‘less’ harmful forms of rape and sexual assault only where the violation of sexual autonomy is brought about by deception.Footnote 21
One might claim that inducing agreement to sexual activity by deceiving C about X does not (in standard cases) risk harm if X is only rarely a dealbreaker. However, it is not unusual for different individuals to be vulnerable to harm in different ways. That C is more vulnerable to being harmed by a particular mechanism than others does not give the state any less reason to protect C from said harm, at least if the actus reus of the sexual offence can be limited to those cases which are standardly harmful (i.e., by limiting liability to D deceiving C about X, where X is a dealbreaker for C). Although there may be concerns about overcriminalisation in cases of unusual dealbreakers, this can be taken into account elsewhere.Footnote 22 Certainly, concerns about overcriminalisation seem weaker where D knew that the information in question was a dealbreaker to C. Accordingly, we should be slow to assume that an act-centred harm principle (ACHP)Footnote 23 can support a restrictive approach to sex-by-deception, unless we are prepared to more fundamentally re-examine the existing scope of rape and sexual assault.Footnote 24
Of course, it may turn out that sex-by-deception about certain kinds of dealbreakers is not harmful. If so, harmless wrongdoing may nonetheless be criminalised in accordance with an instrumental harm principle (IHP) focused on harm prevention.Footnote 25 Criminal liability may decrease the frequency with which individuals with strongly held dealbreakers feel the need to forego positive experiences or take other onerous precautions against the risk of deception,Footnote 26 and protect individuals from inaccurate risk-assessments of the potential harmfulness of deceptive conduct. It is not immediately obvious how variations in the harmfulness of D’s conduct could, on this kind of theory, support content-based restrictions on sex-by-deception.
However, whilst harm prevention is a necessary condition of criminalisation, it is not sufficient. IHPs require additional conditions, ensuring that the harm prevented is not outweighed by the harms caused by criminalisation.Footnote 27 How one goes about this kind of analysis lies outside the scope of this paper. What matters for present purposes is that the harms of criminalisation, to some extent, do turn on the content of the deception. For example, greater harms will generally flow from the criminalisation of deception as to HIV status than whether D and C are validly married.Footnote 28 Criminalisation of HIV positive individuals for concealing their status results in a loss of privacy, in circumstances where disclosure might lead to stigma and discrimination. Where such individuals wish neither to disclose, nor to risk liability, they may forego positive, mutually desirable, sexual activity with those for whom that information was not, in fact, a dealbreaker.Footnote 29 The ex-ante harms of criminalisation may result in a broader chilling effect upon the positive sexual autonomy of anyone who is overly cautious about whether certain information might be a dealbreaker to C, and it seems plausible to assume that the criminalisation of some deceptions are more likely to trigger these broader chilling effects than others.Footnote 30 The harmfulness of D’s conduct may be relevant to this comparison, in so far as those harms against which the harms of criminalisation are to be weighed might themselves vary, but to say that content-based restrictions can be derived from variations in the harmfulness of D’s deception is an oversimplification of this difficult and multi-faceted analysis.
In any event, this weighing of competing factors does not lead to content-based restrictions on moral consent validity at all. The upshot of this sort of complex (and no doubt controversial) analysis is the limitation of criminal liability. There is no obvious basis upon which to argue that C’s moral consent is somehow valid, or that her sexual autonomy isn’t violated by D’s deception, in cases where liability is not imposed due to the costs of criminalisation. In such cases, we might be tempted to describe the conduct in question as ‘consensual’, perhaps invoking a distinction between moral and legal consent, but the language of ‘legal permissibility’ would better capture the important fact that D’s conduct is not criminal for reasons unconnected to the validity of C’s consent.
3 Conceptualising Relative Wrongfulness
If autonomy is scalar, one might imagine that the identification of some deceptions as ‘more wrongful’ or ‘worse’ than others leads to content-based restrictions on consent-invalidating deceptions, but this is not so. When identifying the point of consent invalidity by reference to a particular scale of wrongfulness, there must be some normative relation between the nature of that hierarchy and the exercise of sexual autonomy itself. Moreover, a coherent hierarchy must be formed in the first place.
One obvious starting point when assessing the relative wrongfulness of sexual deception might be to note that sex-by-deception might violate distinct obligations D owes to C (or to others), in addition to potentially violating C’s sexual autonomy. The clearest examples are those deceptions which concern STI transmission risk, or pregnancy.Footnote 31 In addition, when a doctor deceives a patient into engaging in sexual activity on the premise that the conduct in question is required for some medical purpose, the doctor’s conduct breaches professional obligations owed to C to provide accurate medical information and may also breach obligations owed to their employer.Footnote 32 Similarly, if a priest induced a parishioner’s consent by deliberately misrepresenting scripture on the ethics of such a liaison, his conduct would breach the trust reposed in the priest to provide spiritual guidance. If a PhD supervisor falsely assured his supervisee that a sexual relationship between them would not be regarded as inappropriate by their institution, thereby inducing the supervisee’s consent to sexual activity, D’s conduct would be wrongful in view of the professional obligations owed by the supervisor to the institution. D may also wrong C in virtue of breaching pedagogical obligations, quite aside from any matters relating to sexual autonomy.Footnote 33
Yet although there are (many) instances of sex-by-deception involving separate and distinct wrongs, unrelated to C’s sexual autonomy interests, and which we might therefore describe as more or additionally wrongful, this does not help us solve the line-drawing dilemma. An approach which treats any additional wrongdoing as sufficient to reach the tipping point seems implausible.Footnote 34 However, if only some of these are sufficiently wrongful to violate sexual autonomy (as Green seems to suggest), then our model risks becoming ad hoc. Even if the wide swathe of additionally wrongful deceptions could be formulated into some coherent scale, the precise point at which we place the normative tipping point is likely to be an arbitrary one. More importantly, if the relative assessment of the overall gravity of D’s wrongdoing is determined largely by the gravity of the additional wrongs, then the search for ‘more wrongful’ forms of sexual deceptions necessitates a departure from the premise that rape and sexual assault are concerned with the protection of negative sexual autonomy in general. That is because the explanation for where the tipping point lies becomes an assessment of the relative severity of those wrongs which are grounded in other interests.
If we seek to develop a framework to explain an autonomy-based restricted approach to sex-by-deception, we must understand variations in ‘wrongfulness’ in a different way. Where the scalarity of deception and autonomy is more likely to bear fruit is in the acknowledgement that some deceptions have a greater impact on D’s decision-making process than others, thereby constraining C’s autonomy to a greater or lesser extent. There are three principal ways in which we might identify more or less autonomy-restricting deceptions (broadly construed). My aim here is not to suggest that one or more of these approaches should be adopted within a basic framework for solving the line-drawing dilemma; I cannot offer a fully-worked account of any of them here. However, there is value in sketching out potential ways in which the scalar nature of autonomy might lead to a different kind of restriction on consent-vitiating deceptions.
4 Scalarity of ‘Deception’ and its Effects: ‘form-based’ Restrictions
C1 would not agree to sexual activity if she knew the truth about X, and C2 would not agree to sexual activity if she knew the truth about Y. We might be tempted to conclude that D1 and D2 constrain C1 and C2’s decision-making to the same extent. After all, provided X and Y are both dealbreakers to the complainants, D’s deception illegitimately interferes with their ability to take a decision guided by their own values. By concealing the relevant information, D manipulates C’s decision-making in order to obtain C’s participation in an activity to which she would not have agreed, had she known the truth. However, there are three senses in which the scalarity of deception corresponds to a scalarity of interference with C’s autonomy. Common across all three senses is the way they lead us to form-based, rather than content-based, restrictions on consent-invalidating deceptions.
4.1 Strong and Weak Dealbreakers
One obvious point of distinction is how much the deception matters to C. The deception might go to a very ‘strong’ dealbreaker, dominating her decision-making. Or, a dealbreaker might be decisive, but only just. Alternatively, it might be relevant but not, on its own, decisive. A ‘gradeable voluntariness’ theory provides autonomy-sensitive distinctions between different kinds of deception and is likely to result in fewer cases of consent invalidity for idiosyncratic dealbreakers, assuming that idiosyncratic dealbreakers are rarely strong ones.Footnote 35
However, any gradeable voluntariness theory must explain and defend a clear concept of strength and weakness. A dealbreaker might be strong or weak in virtue of the difference it makes to C’s decision, as outlined above. Alternatively, information might be a dealbreaker for C all of the time, or only sometimes, because C’s preferences fluctuate. A dealbreaker might be strong in one sense and weak in the other, or strong/weak in both together. Is strength in either sense sufficient? Why (not)? Proponents of gradeable voluntariness theories must provide clear answers to these questions, in addition, of course, to explaining how strong is strong enough.Footnote 36
Assuming such questions can be satisfactorily addressed, difficulty might arise from the counterfactual terms in which the gradeable voluntariness theory is often expressed.Footnote 37 However, in a case where C actively considered the information about which she was deceived, and regarded it as decisive in the decision she took, why should the counterfactual number of alternative worlds in which it might have made a difference matter? Is it not far more important that in this world, the deception did matter and indeed was decisive (even if only narrowly so) to her consent on this occasion?
In any case, as Manson notes, a ‘gradeable voluntariness thesis’ offers only indirect support for content-based restrictions. When attention shifts from the individual to the population level, it is likely that there will be less idiosyncrasy and diversity amongst strong dealbreakers than weak ones,Footnote 38 and this could be reflected in content-based restrictions enshrined in law, excluding all but the widely held strong dealbreakers.Footnote 39 Yet this would be a crude legal approximation of the underlying moral theory. In moral terms, the fact that most people wouldn’t care strongly about certain information is neither here nor there, if it is a strong dealbreaker for the individual affected. The restriction on consent validity is thus one of form (how much does the deception matter to C’s decision-making) rather than substance (what is the deception about).
4.2 Reasons to Have Sex
One might draw an alternative distinction between the ways in which deception might affect decisions to engage in sexual activity. This distinction is best illustrated by comparing the cases of BoroFootnote 40 and Lawrance. In Lawrance,Footnote 41 C is interested in having sex with D, but only the sort of sex that will not result in pregnancy. C makes enquiries with D about using a condom. D falsely claims that he has had a vasectomy and, as a result, C is willing to have unprotected sex with D. In this case, C has her own motivating reasons for wanting to have (unprotected) sex with D, but these reasons would be outweighed by the information that D is fertile. D’s deception blocks C’s access to this important information, leaving her unable to properly weigh the reasons for and against engaging in sexual activity with D, constraining her sexual autonomy. Contrast this to the case of Boro. D writes a letter to C, purporting to be her doctor, and deceives her into thinking that she has a fatal disease, which can be cured by having sex with D. C decides to have sex with D, in order to cure her disease. In this case, C does not have her own motivating reasons for having sex with D. D’s deception creates the motivating reason(s) C has for engaging in sexual activity in the first place.
Whereas the deception in Lawrance conceals information from C which would make a prima facie desirable option less desirable, deceptively portraying sexual contact as a necessary medical procedure illegitimately creates a positive reason for C to engage in conduct that she would otherwise have had no reason to pursue. Absent the deception, the sexual activity wasn’t undesirable to C in the sense that her reasons for desiring or wanting to engage in the conduct in question were outweighed by reasons against doing so, but in the sense that she would have had no positive reason to engage in the conduct whatsoever. I’m not certain whether we should see the creation of positive reasons to engage in sex as a greater incursion on autonomy than the concealment of reasons not to engage in otherwise desirable conduct, but the distinction does seem intuitively scalar.
However, this distinction cannot support the singling out of fraudulent medical procedures alone as consent-vitiating deceptions. In Linekar, D falsely promised to pay C for sexual services. C had no motivating reason of her own to have sex with D, aside from his offer to pay.Footnote 42 His deception created that reason. Whilst I’m sympathetic to arguments in favour of the imposition of liability in Linekar, a model of sex-by-deception which criminalises Linekar but not Lawrance is unlikely to find broad support.Footnote 43 Yet if there is a plausible distinction to be drawn here, perhaps we should accept the counter-intuitive distinction between Lawrance and Linekar.
However, one worry I have about this argument is that there may not be a sharp, binary distinction between deceptions which create positive reasons to consent, and deceptions which conceal positive reasons not to consent (which might outweigh some pre-existing desire or reason C might have to give consent). Particularly where D has deceived C in many ways, over a long period of time, deception might play a substantial role in curating the sexual desire C feels. In cases like Monica, where D was an undercover police officer, posing as an environmental activist, spying on C and her friends, C might have reasons of her own (physical sexual attraction) for having sex with D, but it is also plausible that D and C might initially bond over supposed shared interests, commitments, values, experiences at demonstrations, etc.Footnote 44 When C starts to experience sexual attraction towards D, that might be at least in part due to the false persona D has curated, perhaps even, in some cases, in order to create that desire within C. This case seems to blur what might seem otherwise to be a sharp distinction.
Even if such a distinction were sound and workable, it would not be strictly content-specific. Deceptions about fertility could fall within this category, depending on the circumstances (D lies about his fertility to a woman looking to have a child on her own, with a ‘donor’, without using fertility clinics). It could also extend to rather extreme ways of changing one’s appearance, temporarily, to appear more attractive. Skilled application of extensive make-up can dramatically alter one’s appearance, giving one a vastly more (conventionally) attractive appearance which, perhaps for a short period of time and in poor lighting, might be quite convincing. Such conduct might well provide C with a positive reason for engaging in sexual activity with D, if C would not have been at all sexually attracted to D if they were wearing less extensive make-up.
Whilst it is perhaps unlikely that a large number of matters might provide individuals with ‘positive reasons’ to have sex, such reasons are person-specific and subjective. The qualifying deceptions will be as varied as the reasons one chooses to engage in sexual activity and the methods adopted to deceive others about them. Therefore, this is another distinction of form and not substance.
4.3 Lying, Deception and Non-Disclosure
At the beginning of this paper, I accepted, for the sake of argument, a definition of deception broad enough to encompass non-disclosure. If ‘deception’ is understood so broadly, the ramifications of an expansionist approach to consent validity are particularly concerning.Footnote 45 However, variations in deceptive practices are scalar in their effect on C’s autonomy.
The scalarity of deception and deception-related practices can be demonstrated by the following example:
Rachel: ‘James, have you ever tested positive for an STI?’
James: ‘I tested positive for chlamydia last year, but received treatment and haven’t even had sex since then, more’s the pity!’
James’ statement is literally true (and he knows this). However, as James intends, the meaning I infer is that he has never tested positive for any STI other than chlamydia last year. That statement is false. James tested positive for HIV five years ago. He is on effective treatment and cannot transmit HIV to others through unprotected sex.
James has deceived me, by using his true statement to imply, falsely, that he has never tested positive for any STI other than chlamydia.Footnote 46 However, I have a further opportunity to reach the truth within the conversation. I could follow up the question with another question: ‘you’ve never tested positive for any other STIs?’ Now James must make a false statement (lie), tell the truth, or refuse to answer the question. However, once James lies to me (‘I have never tested positive for any STI other than chlamydia’) I can do no more to ascertain the truth from him. I am forced to look to evidence beyond my conversation with the speaker (which may not exist) or take him at his word. Thus, lying, at least epistemically, appears to be more problematic than non-lying forms of deception: by more effectively foreclosing relevant information to C it constrains autonomy to a greater degree.Footnote 47
If I met James and assumed he did not have HIV, without the matter ever arising in conversation, then I am mistaken, though James certainly could correct my mistake by disclosing this information. Whilst any decision I might take on the basis of my mistake would be less autonomous than one taken with perfect information, I did have the opportunity to ask James questions about his history of STI diagnoses, or HIV status, and chose not to. If asked, James might have readily told me that he once tested positive for HIV, but is now unable to transmit the virus to others, as a result of his treatment. In a mistake scenario, James’ conduct doesn’t obviously constrain my autonomy and certainly not so much as deception or an outright lie.
The distinction between deception and non-disclosure is not straightforward. If deception involves D causing C to have (or persist in having) false beliefs about a proposition of fact, without himself believing them to be true,Footnote 48 then deception must extend to ‘an unlimited variety of devices by which the deceiver creates false impressions in others’ minds… [including] actions and omissions, as well as words and strategic silences’.Footnote 49 However, ‘passive deception’ must be limited; there are countless instances in which we could correct mistakes of fact and where our failure to do so should not be open to moral criticism. I suspect that non-disclosure is only deceptive when D is under a duty to disclose and, in the sexual context, such duties of disclosure should be narrowly construed.
In any case, non-disclosures do not reveal the truth; (non-lying) deception masks it, and lies deny it outright, cutting off any further conversational path in which C can clarify the terms of her questions and ascertain the truth. There seems to be a scalarity of autonomy-defeating effects associated with distinct deceptive (or deception-adjacent)Footnote 50 practices which could lead to a form-based restriction on those which vitiate consent.
I am sceptical that any such distinction should lie between lies and non-lying deceptions. Quite aside from the practicalities of proof,Footnote 51 few are prepared only to dissemble, but not to lie and, more importantly, given the way in which conversation is a cooperative endeavour to create and understand meaning,Footnote 52 the distinction between the two is a fine one in most contexts. Most people are not attuned to the distinction between literal truth and misleading implication in regular conversation and whilst it may be appropriate to grant normative salience to the lying/deception distinction in highly adversarial settings,Footnote 53 sexual partners should not be conceptualised as adversaries.
We have better reasons to distinguish between deception and mistake, however. Duties of disclosure are onerous, not least as individuals must assess whether disclosure is or may be relevant ex ante, without necessarily being aware of C’s dealbreakers.Footnote 54 However, if non-disclosure of dealbreakers invalidates consent, and James wants to avoid committing a serious and stigmatic criminal offence, he is forced into an invidious position: disclose, just in case, or forego sexual activity. If the information in question did not matter to C, then there is a cost either way: either the unnecessary loss of privacy, or the loss of a mutually desired sexual experience. We must bear in mind that D must make these judgments ex ante, and possibly with limited information about C and her values.Footnote 55 Distinguishing between deception and non-disclosure reduces the predictive burden on individuals, whilst leaving robust protection of sexual autonomy possible in cases where C’s enquiries are met with deception.
5 Conclusion
Green and I agree that rape and sexual assault are concerned with protecting individuals from the violation of sexual autonomy, and I am also concerned about an over-broad approach to the criminalisation of sex-by-deception and mistaken sex. Yet variations in the harmfulness and wrongfulness of D’s conduct cannot ground content-based restrictions on consent validity, as the nature of these variations are unrelated to C’s decision-making and so are not rationally connected or sensitive to the underlying right that the offences seek to protect. However, there are a number of ways in which deceptive practices are scalar in the extent to which they affect or constrain C’s decision-making and can thereby ground form-based restrictions on consent validity.
I suspect that any appropriate theory of deceptive sex will require further content-based restrictions on the sorts of deceptions that can lead to criminal liability. Worries about the predictability of liabilityFootnote 56 and the legitimacy of criminalising conduct widely regarded as socially acceptable still remain, alongside a range of relevant policy issues.Footnote 57 In other words, the harms of criminalisation may outweigh the harms that liability might prevent.Footnote 58 It is in this respect that the relative harmfulness of criminalisation might lead to content-based restrictions on liability, rather than consent validity per se.
Consent is the vehicle through which we invite the jury to determine whether D’s sexual autonomy has been violated. As a result, we might be inclined to assume that, whenever deception is legally irrelevant, C has consented. Yet it is relatively uncontroversial to state that the legitimacy of criminal liability cannot simply be established by reference to the wrongfulness and harmfulness of D’s conduct. Further reasons against criminalisation must be defeated, if liability is to be legitimately imposed. Accordingly, there is no reason to limit our theory of sex-by-deception to an analysis of consent validity. Whilst D’s deceptive conduct may be more or less harmful and wrongful, this insight only gets us so far in our search for a resolution to the line-drawing dilemma.
Notes
To frame this question in terms of ‘deception’ and consent suggests that the focus should be on D’s deception, rather than C’s mistaken belief (unless we adopt a very broad definition of deception). I offer some preliminary explanation as to why we might distinguish between deception and mistake/non-disclosure in Part III. Until then, references to deception extend to cases of non-disclosure, unless otherwise indicated.
Stuart P Green, Criminalizing Sex: A Unified Liberal Theory (OUP 2020) 21.
ibid, chs 2, 5 and 6.
See, for example, Stephen J Schulhofer, Unwanted Sex: The Culture of Intimidation and the Failure of Law (Harvard University Press 1998); Alan Wertheimer, Consent to Sexual Relations (CUP 2003); Rebecca Williams, ‘Deception, Mistake and the Vitiation of the Victim’s Consent’ (2008) 124 LQR 132.
I put aside the distinction between rape and sexual assault here. My concern is not with how we criminalise sex-by-deception but whether we should.
I use this phrase to refer to those deceptions (broadly construed) which induce ostensible consent to sexual activity.
For defences of an expansionist approach, see Jonathan Herring, ‘Mistaken Sex’ [2005] Crim LR 511 and Tom Dougherty, ‘Sex, Lies, and Consent’ (2013) 123 Ethics 717.
Those tied to some external characteristic of the subject matter of the deception, as opposed to the impact of that deception on the individual decision maker.
See n 7. Green rejects this charge, interpreted through the lens of Legal Moralism as, ‘refer[ring] to the criminalizing of conduct that may be regarded by some as immoral but is not harmful or wrongful and therefore fails to satisfy the harm and wrong principles’. For alternative ways of conceptualising legal moralism, see R A Duff, ‘Towards a Modest Legal Moralism’ (2014) 8 Criminal Law and Philosophy 217.
See Rachel Clement Tolley, ‘Deception, Mistake and Difficult Decisions’, in CLRNN, Reforming the Relationship between Sexual Consent, Deception, and Mistake (CLRNN3, Consultation, 2021) (available at http://www.clrnn.co.uk/publications-reports).
A phrase coined by Dougherty (n 7), meaning C would not have consented had they known the truth about the matter.
Green (n 2) 114–15.
According to Green, sex induced by impersonation or fraudulently representing the sex act to be medically necessary/a medical procedure should constitute rape, but not sex induced by deception about HIV transmission risk. The latter is seen as a matter for the non-fatal offences, where transmission occurs. In medical cases D’s conduct is seen as ‘sufficiently wrongful’ to vitiate consent because these cases ‘involve a serious undermining of negative sexual autonomy comparable to obtaining sex by threatening harm’ and ‘reflect a range of potential moral wrongs beyond just deceit – including abuse of position, coercion and exploitation of a vulnerable person’. See ibid, 110–15.
In law and, I presuppose, in morality. Space precludes defence of this point here.
Green (n 2) 107. Without wishing to address various contested issues within debates on the ontology of consent here, we might broadly agree that consent transforms the normative relations between two people, insofar as C’s consent permits D to engage with C in some form of sexual conduct that would otherwise be impermissible. In that sense, consent is binary. D is either permitted to engage in the relevant conduct or not. He cannot be half, or three-quarters permitted. Permission here refers only to the personal obligation owed by D to respect C’s sexual autonomy. D might owe C (or vice-versa) some other duty not to engage in the conduct (perhaps PhD supervisors owe their supervisees a pedagogical duty not to have consensual sex with them, see Amia Srinivasan, The Right to Sex (Bloomsbury 2021) 123–48). Either might owe some duty of fidelity to a third party.
If consent is binary, it seems odd to refer to consent as ‘vitiated’ or ‘invalid’. C either consents or she does not; the devil lies in determining when something that looks like consent actually is consent. However, this terminology is commonly used, so I follow suit here for convenience.
I take no view as to the appropriate mens rea requirement here.
See Part I below.
Green’s substantive analysis of the relative harmfulness and wrongfulness of different kinds of deceptions seems to be situated here, though external factors like the rule of law or the costs of criminalisation seem to motivate (at least in part) his rejection of an expansionist approach.
See David Archard, ‘The Wrong of Rape’ (2007) 57 The Philosophical Q 374, 377.
I am concerned with criminalisation per se, not fair labelling. I leave aside the question of grading the non-consensual sexual offences in general, taking exception only to the singling out for such treatment those cases involving deception.
If fair warning concerns cannot be satisfactorily addressed at the fault stage, then a restricted account should be defended explicitly on this basis.
On Harm Principles, see James Edwards, ‘Harm Principles’ (2014) 20 Legal Theory 253. I read Green’s analysis as offering implicit support for an ACHP. At 40–41, he defines harmfulness as the ‘degree to which a criminal act causes, or risks causing, a… setback to interests’, and treats it as a ‘necessary, though not sufficient, pre-requisite for criminalisation’. His commitment to an ACHP is more clearly stated at 268, where he states that ‘[t]he liberal harm principle requires that an offender’s act causes a victim’s interests to be set back’ (emphasis added).
As Jed Rubenfeld has done, leading him away from a sexual autonomy account of rape. See Jed Rubenfeld, ‘The Riddle of Rape-by-Deception and the Myth of Sexual Autonomy’ (2013) 122 Yale LJ 1372.
It is not my intention to offer a full defence of an IHP here. One worry I have about such theories of rape and sexual assault is that what the defendant actually did to the victim recedes from view, though cf Edwards (n 23). However, an ACHP struggles to explain liability in axiomatic, but harmless, cases of rape and sexual assault, see John Gardner and Stephen Shute, ‘The Wrongness of Rape’ in Jeremy Horder (ed), Oxford Essays in Jurisprudence, Fourth Series (OUP 2000); John Stanton-Ife, ‘Horrific Crime’ in Antony Duff (ed), The Boundaries of the Criminal Law (OUP 2010)). One objection to Gardner and Shute’s well-known analysis of the somatic victim of a ‘harmless’ rape might note the atypical features of their hypothetical and argue that an analysis relying on an ACHP should focus on standard cases of penetrative assaults, which are harmful. Even if that is correct, we should be slower to assume the standard harmfulness of non-penetrative assaults on sleeping or unconscious victims. In such cases, physical injury is less likely to arise and the conduct itself is far easier to conceal.
Simester and von Hirsch argue that the justifiable imposition of liability on this basis is also contingent on the independent wrongfulness of D’s conduct. See A P Simester and Andreas von Hirsch, Crimes, Harms, and Wrongs: On The Principles of Criminalisation (Hart 2011) 47–50.
See Edwards (n 23) 281–84.
See Papadimitropoulos v R (1957) 98 CLR 249 HCA.
This assumes a) that liability extends to cases in which D was either negligent or reckless as to whether his HIV status was a dealbreaker for C, b) that deception encompasses cases of non-disclosure (see Part III below), and c) that the possibility of a jury regarding D’s deception as inconsistent with a (reasonable) belief in consent would force D into this invidious position, whether or not it would be reasonable to deceive C in normative terms.
The chilling effect on transgender individuals in jurisdictions where ‘deception as to gender’ vitiates consent is one particularly harmful consequence specific to a certain type of ‘deception’.
Which are also wrongful by virtue of exposing C to an increased risk of harm she is unwilling to take.
See n 13 above.
See Srinivasan (n 15).
Any kind of deception which takes place within a pre-existing, intimate relationship will breach some additional obligation of loyalty, fidelity or friendship, yet most who advocate a line-drawing approach would balk at the idea of criminalising all such cases.
See Neil C Manson, ‘How Not to Think about the Ethics of Deceiving into Sex’ (2017) 127 Ethics 415.
With thanks to James Manwaring for noting the different senses in which strength might be understood.
See Manson (n 35) 419.
See ibid, 420.
At the cost of accepting unequal legal protection for those with idiosyncratic strong dealbreakers.
Boro v Superior Court 210 Cal Rptr 122 (1985) Cal Ct App.
R v Lawrance (Jason) [2020] EWCA Crim 971.
R v Linekar [1995] QB 250 CA.
It’s perhaps unsurprising, then, that the conclusive presumption against consent in cases where D deceived C as to ‘the purpose of the relevant act’ contained in s76(2)(b) of the Sexual Offences Act 2003 was not interpreted as capturing deceptions which created, in C’s mind, a purpose for acting which she otherwise would not have had. Instead, that provision seems to capture cases in which D deceived C as to D’s own purpose, though if D’s purpose was both sexual gratification and some collateral purpose, like humiliating C, the presumption will only arise if D’s deception conceals D’s desire for sexual gratification. See R v Devonald (Stephen) [2008] EWCA Crim 527 and R v Bingham [2013] EWCA Crim 823, [2003] 2 Cr App R 29.
Monica v DPP (ex parte Boyling) [2018] EWHC 3508 (Admin), [2019] QB 1019.
See Tolley (n 10) for a brief overview.
He also implies that he is currently STI free, which I suspect is true: we should not categorise HIV as an STI if the virus is not transmissible through sex.
This explains, in part, why only an outright lie amounts to perjury in the US, it being the responsibility of counsel to seek clarification of potentially misleading answers: Bronston v United States 409 US 352 (1973) US.
Thomas L Carson, Lying and Deception: Theory and Practice (OUP 2010).
Larry Alexander and Emily Sherwin, ‘Deception in Morality and Law’ (2003) 22 Law & Phil 393.
If a distinction is drawn between deception and at least some instances of non-disclosure.
Lawrance (n 41) [40–41].
See H Paul Grice, ‘Logic and Conversation’ in P Cole and JL Morgan (eds), Syntax and Semantics: Speech Acts (Academic Press 1975). Verbal deceptions often arise in the breach of Gricean rules.
See n 47 above.
Under a negligence-based mens rea, D would be liable if a jury regarded as unreasonable his belief that the information would not be a dealbreaker.
Whilst these factors may go to D’s mens rea, an individual who thinks that any sexual partner might regard his HIV status as a dealbreaker may well be reckless as to the lack of consent. On a negligence standard, juries (rightly or wrongly) might well conclude that the failure to disclose renders any belief in consent unreasonable, unless D has good reason to think otherwise.
See n 22 above.
For example, public health policy concerns are relevant in the STI context, see Matthew Weait, ‘Taking the Blame: Criminal Law, Social Responsibility and the Sexual Transmission of HIV’ (2001) 23 J of Social Welfare & Family L 441.
See Part I above. Harms may include interference with privacy, see Rachel Clement, ‘Deception, Mistake, Privacy and Consent: A Conceptual Framework for Resolving the “Line-Drawing” Prohibition in Sex-by-Deception and Mistaken Sex’, PhD Dissertation, Oxford University 2018.
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My thanks to Findlay Stark and James Manwaring for written comments on earlier drafts.
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Tolley, R.C. Harmfulness and Wrongfulness in Sex-by-Deception. Criminal Law, Philosophy (2024). https://doi.org/10.1007/s11572-023-09714-3
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DOI: https://doi.org/10.1007/s11572-023-09714-3