Deception, Sex, and the Law: The Case for Criminalising Sex-By-Deception

Remember, sex is about consent', reads the Metropolitan Police's webpage on rape and sexual assault.Indeed, the law in many jurisdictions places 'consent' at the heart of rape law; the legal definition of rape is sexual contact without consent. 1What delineates legally permissible from illicit sexual activity is valid consent.Even in cases where minors and the cognitively impaired purport to provide consent, the law views the victim's consent as invalid and deems the sexual encounter non-consensual (Kukla 2021).Put simply, consent is a necessary condition for legally permissible sex such that all non-consensual sexual acts are ostensibly criminalised.Thus emerges a simple equation: sex minus consent equals rape under the law.Rape law, however, proves an exception to the legal maxim that 'fraud will vitiate consent' (NLRB v. Dadourian Exp.Corp.).As discussed, the concept of 'consent' is central to the legal definition of rape, but sexual consent induced by deception is not criminalised in most circumstances.To be sure, many jurisdictions define 'consent' such that 'consent obtained by deception is "no consent" at all' (Rubenfeld 2013, p. 1376).Florida's sexual battery law, for example, requires consent to be 'intelligent, knowing, and voluntary' (Florida Statutes 794.011(1)(a).Yet, in most jurisdictions sex involving deception is typically deemed consensual.Rubenfeld (2013) has coined this contradiction 'the riddle of rape-by-deception'. 2 That is, the law defines 1 For example, the United Kingdom's Sexual Offences Act 2003 provides the following three elements of the crime of rape: '(a) [person A] intentionally penetrates the vagina, anus or mouth of another person (B) with his penis, (b) B does not consent to the penetration, and (c) A does not reasonably believe that B consents' (emphasis added). 2 The words 'sex' and 'rape' typically connote permissible and impermissible conduct, respectively.Although I will argue that it is appropriate to conceive of the conduct in question as a form of sexual assault, to avoid stacking the deck from the outset I use the terms 'rape-by-deception', 'sex-by-deception', and 'deceptive sex' interchangeably.