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.
There are limits to how involved I want the state to be in my life – this one is overkill. I have no sympathy for Abigail Finney – she was the sober one in the bed … she did not think to turn around and check? Does she not look both ways before entering an intersection?
I would guess that in this “war between the sexes” there is far more deceit than not when it comes to one person getting another into the sack. Legislating this kind of behavior would just open up the floodgates to the courts, and be one more message to our society that we don’t have to take responsibilities for our actions.
As for Joyce Short – really? Is she serious? She went on to marry the guy, stay with him for eight years, and have his child!
1. Fraud is always a crime. Fraud is not just lying…. it’s lying with resultant harm to someone. You can lie ’til you’re blue in the face, but until someone is harmed by it, you have not committed fraud. So let’s be perfectly clear. Lying is immoral, but fraud is a crime. When you commit the crime of fraud to induce sexual contact, you are a criminal. Sexual assault by fraud is not punishable to the same degree as violent rape. Violent rape is a class A felony. Rape by fraud is a D/E felony of a class A misdemeanor, depending on which state you’re in.
2. Consent is not simply agreeing. There are three distinct types of agreement that can take place in sexual conduct, but the only one that makes sexual contact legal is consent. Consent is “freely given, knowledgeable and informed agreement.” Assent is “agreement on the face of it.” When you’re tricked into sex, you are “assenting” not “consenting.” In fact, Missouri’s statute says “Assent is not consent when induced by force, duress or deception.” Watch this for more clarification: http://bit.ly/2MvLpJp.
3. Abi Finney was in bed with her boyfriend when she fell asleep. She was in his dark dorm room, in his bunk bed. What woke her up is the touch of a hand on her breast. She was only semi-conscious when Ward penetrated her. DH is totally absurd when he states the ridiculous notion that a reasonable person would not have understood Ward to be her boyfriend. Even Ward knew he was tricking her. He admitted it and he admitted that he intended to do so. That’s why he was arrested. The only reason he was freed is because of the deficiency in Indiana’s law to recognize his conduct as a crime. Thank good ness for legislators that are attempting to write this grotesque oversight in their laws.
4. “Your Consent – The Key to Conquering Sexual Assault” has been used by legislators, including Indiana’s, to create the foundation for new laws. In fact new laws are currently pending in Indiana and SC as a result. This work is now available to the public on Amazon at https://www.amazon.com/dp/B07N1CXDCC/ref=sr_1_1?s=digital-text&ie=UTF8&qid=1548295867&sr=1-1&keywords=your+consent
Thanks for the more precise accounts of the concepts of fraud and consent.
I certainly agree that a person just waking up would not be able to clearly distinguish between two people, especially when they had no reason to suspect anything was going on. When I teach critical thinking, I do a section on the problems and difficulties of direct observations-people are often really bad in making accurate observations. The principles would apply in this case: a person just waking up lacks perceptual acuity, a person who expects one thing might not recognize that it is actually another, and so on.
Two thumbs up! People rush to judgement. Not all the pertinent data is always included by media. The important thing for society to understand is that consent is freely given, knowledgeable and informed agreement. Certainly, no means no, but when a person is forced, tricked or deceived into sexual contact, their yes could not be considered yes, and the offender knows it at the time of the occurrence- even though the victim does not. Please pardon the self promotion but if people watch my TEDx Talk, When YES Means NO- The Truth about Consent http://bit.ly/2MvLpJp they would probably get a better handle on this issue.
Let me pose another hypothetical.
Let’s say a female college student has decided that she will only sleep with pre-meds. A philosophy major lies and says he is a pre-med and she agrees (assents? consents?) to have sex with him.
Was she raped?
@TJB- Thanks for your question.
In both my book: “Your Consent – The Key to Conquering Sexual Assault,” and my TEDx Talk, “When YES Means NO – The Truth about Consent,” I state clearly that violent rape is the most heinous form of sexual assault. But whenever an offender undermines their target’s self determination over their reproductive organs, they’re not seducing them, they’re sexually assaulting them.
No matter how a murderer kills you, if you die at their hands, they’ve committed a crime. Sexual assault is the only crime where our penal codes equivocate over the method the offender used.
The defilement of sexual assault is the second most horrific harm that can take place in a person’s life. Murder is the first. Theft of your property is third because it’s not a “crime against the person,” unless someone hits you over your head with a two by four in the process. I’m speaking metaphorically. I’m confident you get the point.
Hitting you over the head to take your property will constitute a more severe crime – an aggravated crime – than defrauding you of your assets, but they are both punishable crimes. Hitting you over your heard with a two by four to sexually assault you is recognized as a crime in every state, but defrauding you of sex is not. This is bizarre! It needs to change.
In your example, let’s consider that the offender knew she didn’t want to have sex with anyone other than pre-meds. He’s not one. If someone told you they were selling you a jaguar but you found out that it was simply a kit that they bought to construct the appearance of a jaguar on a Volkswagen body, they’d be defrauding you, right? And the authorities could bring charges of theft by fraud against them. Would they be handed the same sentence for defrauding you that they would have had they beaten you up for your money? Nope. But they could be locked up if convicted.
There’s more you should know about locking people up for sexual assault by fraud; however. The victim would have to have a reasonable basis for believing the deception and have significant proof that the deception took place. If they hopped into the sack with someone without “reasonable” due diligence, they won’t be able to prosecute. People whose cases would result in arrests would have a reasonable basis… otherwise known as “Would a reasonable person have been deceived in the same circumstance?” This litmus test is applied in ALL fraud cases, not just sexual assault,
The reason our courts and crime fighters are not sanctioned by penal code to protect a woman’s body the same way they’d protect a man from being defrauded over a car purchase is that they simply don’t value the sexual sanctity of a woman’s body. And they fail to recognize that men can be harmed this way too.
What should be the punishment? First- is this a first offense? They’re likely to get probation and a fine if it’s a D/E felony along with community service and education. But a repeat offender should serve the maximum sentence which is likely to be 3 years.
Some more questions.
It seems to me that this standard would criminalize adultery. Is that not the case?
Also, if a woman bears a child and her husband is not the biological father, should she really be imprisoned, even if it is not her first offense?
TJB- Consent is a basic, simple concept. You need consent to conduct sex. First and foremost- in order to understand when they and the other person is consenting, they need to recognize that consent is freely given,knowledgeable and informed agreement. That’s what it was, is, and always will be. Don’t shoot the messenger.
Society needs to find a new normal when it comes to sex…. one that considers that consent is freely given, knowledgeable and informed agreement.
People who are deprived of consent are brutally, and intimately, emotionally damaged by a sexual predator who deliberately set out to do so. Only when society gets this concept, will we be able to conquer sexual assault.
What should be the punishment? First- is this a first offense? They’re likely to get probation and a fine if it’s a D/E felony along with community service and education. But a repeat offender should serve the maximum sentence which is likely to be 3 years.
I am not trying to shoot the messenger, but I am trying to figure out who you want to put in jail.
Seriously, if a wronged spouse finds out that his or her partner was unfaithful, could not that person withdraw consent and claim that he or she was raped?
Interesting question; the adulterer would be deceiving their spouse and the spouse would probably not give consent if they knew about the adultery. This does raise the need for clarifying the boundaries of what counts as fraud in the context of consent. However, finding cases that are tricky do not invalidate the general principle-as is the case with almost any matter of law. For example, we don’t throw up our hands and allow all financial fraud because there are some grey or tricky cases.
Are you saying that consent can be given, and then, after more information is available, retroactively withdrawn?
I would think so.
For example, suppose that you are running TJB Bank and Ralph Northam comes in while wearing blackface to ask for a small business loan with a special rate for minority business owners. Thinking he is black, he gets the special rate as you consent to the loan. Later, while watching the news, you realize that he is white! You cancel the loan and retroactively withdraw the consent you gave.
Great explanation Michael. I believe it would be a bit clearer; however, if you stated it a little differently – understanding that “consent” is freely given, knowledgeable and informed agreement, and “assent” is agreement on the face of it. Both assent and consent are types of agreement.
So here’s how I’d rephrase your response to make it a bit clearer:
>For example, suppose that you are running TJB Bank and Ralph Northam comes in while wearing blackface to ask for a small business loan with a special rate for minority business owners. Thinking he is black, he gets the special rate as you assent to the loan. Later, while watching the news, you realize that he is white! You cancel the loan and retroactively withdraw the agreement you gave. You never consented because you were not knowledgeable and informed. You “assented.” And the offender knew at the time of the loan that you were assenting, not consenting, because they knew they were tricking you even though you did not know it at the time.
Good rewrite, thanks.
I don’t think I want to argue the finer points of this with Joyce; you have been victimized and have far more of an emotional investment than I – and I’m certain much more investigation into the legalities and loopholes than I could ever pursue myself. So far be it from me to deny or disparage your own experience – you have my sympathies and my support.
That said …
“DH is totally absurd when he states the ridiculous notion that a reasonable person would not have understood Ward to be her boyfriend.”
Maybe yes, maybe no. As a legal point, lawyers could battle this out and sway a judge or jury based on all sorts of appeals to logic, precedence, or emotion – but the fact remains that she did not turn around. Also, it was she who initiated penetration – so there’s that. The definition of a “reasonable person” does have to consider circumstance – and Abigail was in a situation where a reasonable person might have seen fit to exercise a bit more caution than say, if she were in her boyfriend’s room alone, or if he and his friends hadn’t been drinking, or if Ward had not made lewd comments toward her. Which is certainly not to excuse Ward for his bad behavior …
I won’t argue the particulars of this case here – I clearly don’t have enough information. But I can imagine a scenario where the girlfriend of one boy may have sent some signals to one of his friends – flirtatious, teasing, maybe even inviting. Suddenly an opportunity presents, like the one Abigail was in – where post-coital regret or fear of reprisal might cause her to change from “willing participant” to “victim” – exonerating her from any responsibility at all, casting all blame on an unwitting aggressor and suddenly casting him as a rapist, a felon, and marking him as a sex offender for the rest of his life.
Again – I am not making a judgement about Abigail – all I have to go on here is a single article. But in a broader sense, it sets some legal precedent that we aren’t responsible for our own bad decisions – which is a precedent I’m not quite ready to accept.
Years ago, I had a “summer romance” that was a kind of rebound affair. I fell deeply in love with a girl who said she loved me too – she told me that I was her “everything”. In the fall, she went back to finish her last semester of school – during which time we made plans for our future, we had some long phone calls and missed each other terribly. However –
Turns out she had applied to a few grad schools – one of which was near me, one was at the university where she had done her undergrad work – and where she had another boyfriend. It became clear that she didn’t really love either one of us – just wanted to keep her “boyfriend” options open based on her grad school opportunities.
Clearly dishonest. Clearly hurtful, immoral, and even cruel – but rape?
Looking back, I missed a lot of signals, I was naive and vulnerable, and I got hurt pretty badly – but I learned a valuable lesson. Although I sincerely wanted to see this girl punished for what she did to me, there is no way that I would ever expect that any kind of legal charges could or would be brought against her.
I will repeat – there is a limit to where I would want the state to interfere in my personal affairs, no matter how much I may feel as though I have been victimized.
DH- Ward actually admitted to tricking her. It’s not debatable. He admitted he intended to trick her, and he admitted he knew he was doing so.
Regarding your encounter in grad school- sorry you experienced that conduct. The type of lies that would rarely get a person arrested, are lies of intent…. unless the “fraud in fact” can be proven. Here’s how it works- If the person says, “I will marry you in the morning,” but is already married at the time, they are committing a “fraud in fact.” If however, nothing could preclude him or her from getting married, they could simply say, “I changed my mind.” A Prosecutor would be highly unlikely to take that case.
If the woman in question indeed declared that you were having a monogamous, exclusive relationship, she assaulted you. But it’s not a case that would be likely to be prosecuted without your having substantial evidence that she made those untrue declarations and that they were untrue at the time she made them.
Changing your mind is an acceptable conduct. Every “reasonable” person knows that the other person could change their mind.
Ms. Short. Is there a way to contact you privately?