Gender, "deception" and the law, pt. 2 of 3

In my last post, I began a discussion of the concept of sexual "deception," inspired by the pernicious suggestions of some commentators that transgender hate crime victims such as Angie Zapata themselves committed criminal sexual assault by failing to disclose their anatomy/gender history to sexual partners. I explained that the law has generally construed the concept of criminal sexual deception very narrowly, to include only deception about (a) the nature of the act itself as a sexual act, and (b) the identity of a defendant posing as another person. In this post, I will consider some other potential categories of sexual "deception." In a final post, I will discuss the handful of cases in which transgender individuals have actually been prosecuted on the basis of nondisclosure to sexual partners.

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

Courts once upon a time would punish people who broke such promises to sexual partners with civil judgments (not imprisonment). No longer.

• Promise of money.

The failure to pay a promised fee for sexual services seems much more like theft of services than rape - and it no doubt would be treated as such, except inasmuch as the selling of those services was illegal to begin with.

• Personal prestige and connections.

"I'm a record producer" or "I'm in a rock band" are the typical examples. But note that this comes in many degrees, and such claims to power, status or wealth may also be implied through conspicuous consumption, name-dropping, and the like.

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.

Personal characteristics.

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
• Religion
• Manner of employment (e.g., involvement with a controversial practice or cause)
  
• Criminal record
  

I'd go further and state that at least in some situations and for some individuals, not only could these facts be deal-breakers, but if discovered after the fact any of them could cause some individuals deep feelings of shock, disgust and betrayal, as has apparently or allegedly occurred in several cases involving trans people. [This was originally a reference to the Zapata case, but commenters noted that the relevant facts were very much in question in that case.]

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.

Caveat amator.

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:

1. 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.
2. 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).
3. Whether nondisclosure or false statements to sexual partners is immoral or unethical.

It seems obvious to me that, assuming sets (1) and (2) exist, they will each be smaller subsets of (3). There is a great deal of sleazy behavior in sexual relationships that should be condemned and discouraged. But as Alan Wertheimer has noted in his thoughtful book Consent to Sexual Relations, "The law is a blunt and expensive instrument, to be invoked with great reluctance, even at the cost of refusing to sanction some behavior that is clearly wrongful." (Wertheimer devotes a full chapter to the topic of deception, which is worth reading.) Moreover, it seems to me just to take into account factors that may inhibit an individual from immediately disclosing some potentially inflammatory personal facts - particularly their membership in a marginalized social group based on characteristics having no relation to their moral worth or contribution to society.

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.