Rape by Deception
What is sexual misconduct by lying or withholding?
Posted Dec 26, 2017
Can sex be wrong if you withhold information or lie about yourself before having sex? It certainly seems so. For example, not being honest about having a sexually transmitted disease can make it wrong for you to have sex with an uninformed partner.
Let’s call dishonesty intended to increase the chance of having sex ‘sexual deceit’. Sexual deceit includes both failure to disclose information about yourself as well as lying about yourself. The question is under what circumstances sexual deceit will make a sexual act morally problematic.
Deceiving another person in order to have sex with them is morally wrong when it prevents the other person from giving fully informed consent to the act (Rubenfeld, 2012-2013). The reason for this is that informed consent cannot be given when you don't really know what you agree to when agreeing to have sex.
Sexual encounters involving deception that may qualify as sexual misconduct include (among many others) lying about the use of contraception, lying about your age, gender, marital status, religion or job, lying about having been tested for sexually transmitted diseases and infections, pretending to be someone’s partner, and falsely making the partner believe that the sexual act is a medical procedure.
For example: In 2009, California-resident Julio Morales was convicted for rape by fraud for sneaking into the dark bedroom of an 18-year old woman and having sex with her under the false pretense of being the woman’s boyfriend who had just left. The conviction was eventually overturned because the law of 1872 only criminalizes rape by fraud when someone impersonates a woman’s husband in order to get her consent. This loophole was closed when Assembly Bill 65 and Senate Bill 59 were signed into law in 2013.
In 2000 an Israeli man Eran Ben Avraham was convicted of fraud for pretending to be a pilot and a medical doctor in order to have sex with a woman. In Israel pilots and medical doctors are held in particularly high esteem by women and their mothers.
In 2010 a married Israeli Arab Muslim man, Sabbar Kashur, was convicted of rape by deception after pretending to be a Jewish bachelor interested in a long-term relationship prior to having sex with a Jewish woman he just met. His initial sentence of two years but his sentence was eventually reduced to nine months.
Starting in 2014 Ricardo Agnant posed as an NFL football player for the Miami Dolphins by the name of Maserati Rick in order to pick up women. He backed up his story by inventing a digital personality whose persona was based on images from his one-time participation in a regional combine at the Dolphins facility in 2014 as well as photoshopped images of Dolphin players. Agnant’s scam was revealed in 2017 but he was never tried or convicted.
As noted, sexual encounters involving deceit as a way to obtain “consent” may not in fact be consensual. Jed Rubenfeld argues for the stronger view that all sex by deception is non-consensual and therefore counts as rape. As he puts it, ‘sex-by-deception is always sex without consent, because a consent obtained by deception, as courts have long and repeatedly held outside of rape law, is “no consent” at all’ (2012-2013: 2).
There is no doubt that sex involving deceit can be morally reprehensible. However, it is less clear that deceit-based sexual acts are always morally wrong. Subjects may adhere to idiosyncratic consent rules that should not make the pursuing party guilty of rape. Suppose Jill would never consent to sex with someone whose father is older than seventy-five. Jack has always been embarrassed about having a very old father and thinks that he will be disliked or ridiculed if he reveals it. When he meets Jill and falls in love with her, he lies to her about his father’s age. The couple start a relationship and eventually agree to have sex.
This case involves deceit: Jill would never have had sex with Jack, if he had revealed his father’s real age. And Jack’s lie is not exactly okay. But Jack didn't rape Jill, as the sexual encounter cannot correctly be understood as non-consensual.
One way to capture when sex involving deceit qualifies as sexual misconduct is this: sexual encounters involving deceit are wrong when it is reasonable to believe that had you provided your sex partner with some information you have about yourself prior to the encounter, then he or she would not have agreed to have sex (owing to that information).
In the case of Jack and Jill, Jack could not have predicted that if he had told Jill how old his father was prior to their encounter, then Jill would not have agreed to have sex with him on the basis of this information. So, even though Jack did something wrong by lying, he didn't do anything wrong by proceeding to have sex with Jill.
Berit "Brit" Brogaard is the author of On Romantic Love.
Rubenfeld, J. (2012-2013). “The Riddle of Rape-by-Deception and the Myth of Sexual Autonomy,” The Yale Law Journal, 122, 6: 1372-1669.