Joyce Short, who was the victim of deception, has argued that rape by fraud should be a crime. Pragmatically, the legal issues are the most important; but the moral aspects of the proposal are philosophically important.
To set the context for the discussion and to avoid straw person attacks, those seriously arguing that rape by fraud should be a crime are focusing on significant fraud rather than absurd cases. To illustrate, a person who engages in hyperbole or falsely brags about how awesome they are would not be targets of such proposed laws. Rather, some of the concern is focused on cases such as Short’s in which a person engages in significant and sustained deception in order to gain sexual access to a person. Another example is the case of Abigail Finney. One of her boyfriend’s friends had sex with her by pretending to be her boyfriend. While the man was chided by the court, he was not convicted of any crime. From a legal standpoint, rape and assault tend to be narrowly defined so that using fraud, rather than force, is not a crime. From a moral standpoint, this seems problematic.
One obvious argument for why the use of fraud to trick a person into assenting is wrong is based on the view that fraud is wrong. While the goal of the fraud does matter, fraud itself is generally immoral and hence using it to trick a person into assenting to sex would be immoral.
Another obvious argument for the use of fraud being morally wring and one that also ties into the legal argument, is to draw an analogy between existing crimes of fraud and using fraud to trick a person into assenting to sex.
While specific laws about fraud vary, the general idea is that the perpetrator intentionally deceives the victim with the intent of persuading the victim to part with property. One key aspect of fraud is that without the deceit, the person would not part with their property. For example, if someone calls a victim and pretends to be an IRS agent in order to trick them into providing an Apple gift card number, then that person is attempting to commit fraud. After all, the person presumably not give Apple gift card numbers to strangers who call asking for them.
While it can be problematic to consider a person’s body their property, Locke does make this argument in his classic discussion of the justification of property rights. It could thus be argued that a person who uses deceit to acquire sex is morally (and legally) analogous to someone who uses deceit to steal any property. Or, perhaps a better analogy would be to stealing access to property—such as using fraud to get a hotel room, rental car or access to a concert. If it is immoral and illegal to use deceit to steal property or access to property, then the same should apply to using deceit to steal access to a person’s body.
It could also be argued that using deceit to acquire sex is analogous to a theft of services. If someone uses deceit to steal the services of the government or business, then that would be a crime (and generally wrong). The same should apply to stealing sex by using deceit. One concern here is that characterizing sex as a service would seem to imply that people engage in a form of prostitution when they engage in sex. While this might seem to be unappealing, it can be argued that consensual sex is an exchange—and one that need not be crassly material (one might have sex because of love). Naturally, one could note that under capitalism, everything can be cast as a good or a service—so looking at acquiring sex by deceit as a theft of service does make sense in our current economic system.
While fraud might not seem as bad as the use of force, it is recognized as an immoral and often criminal tool and to not apply the same principle to sex would be inconsistent and unprincipled. This would be on par with making violent theft a crime but allowing people to freely engage in theft by deceit.
One counter argument is to contend that in many cases a person who assents to sex with a deceiver is still consenting to have sex with them. To illustrate, imagine a man who creates the illusion that he is extremely wealthy and successful with the intention of using this deceit to get women to assent to sex. While his targets could honestly say that they would not have had sex with him if they knew he was not rich (and that using deceit is immoral), it might strike some as odd to conclude that he should be charged with a crime.
As another example, imagine a woman who uses plastic surgery, extensive makeup and padded clothing to improve her attractiveness to men. Imagine that a man would not have had sex with her if he knew how she really looked (they have sex in the dark). While she did deceive him and this would be immoral, it would be odd to say that it should be considered a crime.
One final objection is to argue that personal relations should not be regulated by the state. To use an analogy, imagine that Sam pretends to have the same hobbies and interests as Dan so that he can become his friend. Sam does not really care about Dan, but Dan has an awesome boat, a beach house and goes on amazing trips around the world. By pretending to be Dan’s friend, Sam gets to ride in the boat with Sam, stay in the beach house with Sam and go on trips with Sam. Even if Dan forms a one-way emotional bond with Sam and is deeply attached to him, Sam does not seem to be engaged in criminal activity (although he would be a morally awful person) if he simply plays the role of a fake friend. Obviously, if he used deceit to steal the boat, house or money from Dan, that would be different. By analogy, one could argue, using deceit to get assent to sex in similar sorts of circumstances would be immoral but should not be considered a crime.
The easy and obvious counter to such concerns is to note that morality and the law distinguish between degrees of severity regarding immorality and crimes. As such, while these examples show immoral behavior in the form of intentional deception, they do not seem to rise to the level of crimes. This does, however, point to the legal and moral importance of crafting laws that make such distinctions. While some might object that this would be too hard, the law and ethics already addresses equally complex matters successfully.