Beyond the narrow categories discussed in my last post, other types of sexual "deception" have been rejected by courts and most commentators as grounds for criminal liability. By contrast, some commentators have taken the view that deception about any fact that the defendant had reason to know would be material to the complainant vitiates consent and constitutes rape. Let's consider what kinds of information that could include.
Fraud in the inducement.
Courts have generally distinguished in this area between fraud in the factum, i.e., about the nature of the act consented to, and fraud in the inducement, i.e., about factors that motivate consent. To state this distinction is to recognize that it is far from an airtight distinction. It's possible to define any personal or circumstantial fact as part of the "nature of the act consented to," but not very meaningful to do so. Consider some common examples:
- Promise of love or marriage
- Promise of money.
- Personal prestige and connections.
In all of these circumstances, I think it's fair to say that what's going on is dishonest and sleazy, but bears little resemblance to rape.
This category, of course, includes things like anatomy and gender history. Again, personal characteristics can be described as part of the "nature of the act" or the "identity" of the (putative) perpetrator, but this strikes me as a rather circular word game. Here are a few key examples of personal characteristics that may not be readily apparent, yet would be sexual deal-breakers for some people:
- Marital or relationship status
- Sexual orientation (esp. identification as gay or bisexual, or sexual history with X gender)
- Race, ethnicity, nationality, or caste
- Manner of employment (e.g., involvement with a controversial practice or cause)
- Criminal record
Yet do individuals have a right to know these facts? If so, a troubling list of subsidiary questions appears: Do they have a right to know some of these facts but not others? If so, which ones? Is such a list to be determined by how common intense feelings about a particular characteristic (vis a vis sexual partners) are among the general population (or some sub-population)? Unless such a list is codified in a statute, how are individuals to know which personal facts they are bound to disclose? Furthermore, is there an affirmative obligation to disclose to all partners? To all partners that one knows for sure have strong feelings about that personal fact? To all partners that one has reason to believe might have strong feelings about that personal fact? What constitutes reason to believe, and isn't possession of that knowledge by a particular partner often happenstance? Or is the obligation simply not to make affirmative contrary statements? In my view, these problems are intractable, at least as a matter of law.
Additionally, a disclosure obligation will necessarily place the greatest burden on members of socially marginalized groups. Essentially, group members will be forced to wear a scarlet letter with regard to their entire romantic and sexual lives. It strikes me as very problematic to place a societal badge of approval on loathing for certain groups of people, even in the name of protecting the sexual autonomy of others.
The notion of "caveat amator" is often mentioned in discussions of sexual deception: individuals ought to be aware of some inherent risks of sexual activity. This logic, quite obviously, can be taken too far, particularly given the larger social context of gender inequality. But it does seem apt with regard to the question of disclosing personal characteristics, and all the moreso the less the persons involved know one another. In a casual sexual encounter, or even early on in dating, it is self-evident that there is a great deal about your sexual partner you do not know. Even if a person makes false statements about him- or herself, the extent of the emotional harm done to the other person will typically vary with the length and depth of the parties' acquaintance. Finding out that my lover of three years has, say, a loathsome personal history will certainly be far more distressing than finding out the same thing about the anonymous stranger I shagged at the bathhouse.
Law versus morality/ethics.
There are a few tangled but distinct questions here:
- Whether nondisclosure or false statements to sexual partners should be treated as vitiating consent to sex, so that seemingly consensual sex is regarded as a sexual assault.
- Whether nondisclosure or false statements to sexual partners should be subject to legal penalty on some other basis (such as subjecting partners to harmful consequences).
- Whether nondisclosure or false statements to sexual partners is immoral or unethical.
On the general principle that causing avoidable emotional distress to others is wrong, one could easily recognize a moral imperative to disclose some information to potential partners who might be upset by it. All the moreso in situations where the potential partner will be unwittingly involved in unethical behavior (as with a cheating spouse) or exposed to tangible risks (as with a sexually transmitted infection). While others might disagree, I am hesitant to recognize a strong imperative of this sort on the basis of membership in any socially marginalized group. But regardless of that question, it seems clear to me that nondisclosure in such contexts should not be regarded as vitiating consent to sex.