Joyce Short, a victim of deception, has argued that rape by fraud should be a crime. Pragmatically, the legal issues are the most important; but its moral aspects are philosophically important.
To set the context for the discussion and avoid straw person attacks, those 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 about their wealth or engages in bragging about their awesomeness would not be targets of these proposed laws. Rather, the arguments for the proposals are based on cases such as Short’s in which someone engages in significant and sustained deception to gain sexual access. Another example is the case of Abigail Finney. One of her boyfriend’s friends had sex with her by pretending to be him. While the man was chided by the court, he was not convicted of any crime. From a legal standpoint, rape and assault are currently narrowly defined and using fraud, rather than force, is (usually) not a crime. From a moral standpoint, this seems incorrect.
One argument for why the use of fraud to gain assent is wrong is that fraud is wrong. While the goal of the fraud does matter, fraud itself is immoral and using it to trick a person into assenting to sex would thus be immoral.
Another argument for this type of fraud being morally wrong and one that ties into the legal argument, is to draw an analogy between 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. A key aspect of fraud is that without the deceit, the person would not have parted with their property. For example, if someone calls a victim and pretends to be an IRS agent to trick them into providing an Apple gift card number, then they are attempting fraud. After all, the person would not give Apple gift card numbers to strangers who call asking for them.
While it might seem odd to see a person’s body as their property, Locke argues for this in his discussion of property rights. He argues that a person’s right to property, such as a house, arises from their ownership of their body. So, it could be argued a person who uses deceit to acquire sex is morally (and legally) like someone who uses deceit to steal any property. Or, perhaps a better analogy would be stealing access to property, such as using fraud to get a hotel room or a rental car. If it is immoral and illegal to use deceit to steal property or access to it, 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 a business, then that would be a crime (and probably wrong). The same should apply to stealing sex by using deceit. One concern is that characterizing sex as a service would seem to imply that people engage in a prostitution when they engage in sex. While this might seem unappealing, it can be argued that consensual sex is an exchange. Naturally, one could note that under capitalism, everything is a good or a service, so seeing acquiring sex by deceit as a theft of service makes sense in our economic system.
While fraud might not seem as bad as the use of force, it is recognized as an immoral and 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 a person who assents to sex with a deceiver is still (probably) consenting to have sex with them. To illustrate, imagine a man who creates the false appearance of wealth and success intending to use it to get women to have sex with him. While his targets could say that they would not have had sex with him if they had known he was not rich, it would seem odd to conclude that he should be charged with a crime despite his immoral behavior.
As another example, imagine a woman who uses plastic surgery, makeup and padded clothing to improve her attractiveness. 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 specific examples show immoral behavior in the form of intentional deception, they do not seem to rise to the level of crimes. But there can be cases in which the nature of the fraud should make the act criminal. This shows 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 address equally complex matters successfully.