Joyce Short was young and single, enjoying a thriving career on Wall Street, when she went out with some friends to a bar after work. She met a “very handsome, debonair young man” who seemed perfect for her: Jewish, single, with a degree in accounting from NYU. She would learn much later, after they had begun dating, that none of this was true. Now, she has a mission: she wants to show people the seriousness of what she calls “rape by fraud.”
“I am going to shout it from every rooftop,” Short told VICE. “All lies that undermine a person’s self-determination regarding their reproductive organs are a form of assault.”
Most of us have played with the truth or held back information about ourselves to impress someone—white lies, like “Yeah, I thought Interstellar was brilliant too!” or “What a coincidence, I also love winter hiking!” Short is not alone, however, in thinking that such lies can sometimes cross a line. And as the law stands in America, cases like Joyce’s—in which someone deceives their partner to get them into bed—are not illegal.
In 2013, Tom Dougherty, a philosophy professor at Cambridge University, published apaper arguing that if you lie or withhold information about anything that would be considered a deal-breaker by your partner—anything that, had they known it, would have changed their mind about sleeping with you—you have sexually assaulted them. The logic is simple: If your partner had known the truth beforehand, they wouldn’t have consented, and the sex wouldn’t have happened. Therefore, there was no consent. And sex without consent is assault. Fiona Elvines, of the UK national charity Rape Crisis, put this view bluntly to the Telegraph in 2014: “If you need to trick someone into having sex with you, you’re a perpetrator.”
The deal-breaker view is based on the powerful idea that free and open consent is an absolute requirement for all sexual activity. President Obama has, for instance, launched the “It’s On Us” campaign, aimed at teaching people that all non-consensual sex is assault. But for consent to be free and open, it seems that it should also be fully informed. That’s the standard we hold people to in medicine and business—why not sex? As the Anti Violence Project at the University of Victoria explained, “Informed consent means that someone who is being asked for their consent has full information about what they are being asked to consent to.” In other words, we should have all the information that we consider relevant before getting into bed with someone.
Joyce Short wants us to go further than moral condemnation. “Lying to induce sex is not seduction, it’s a crime,” she told VICE. After her experience, Short has become vocal about the need to reclassify lying to one’s sexual partner as a form of criminal sexual assault. Jed Rubenfeld, a professor at Yale, recently argued in the Yale Law Journalthat this view is the logical outcome of the importance we now place on fully-autonomous consent as a precondition to sexual activity.
Some lawmakers agree. Today, American laws generally make two kinds of sexual deception illegal: cases where someone impersonates a person’s partner (by sneaking into their bedroom at night, for instance), and cases where someone such as a doctor tricks a patient into thinking a sex act is actually some sort of medical procedure. Legislators in two states have proposed broadening the law to make it illegal, as Short thinks it should be, to deceive someone to get them into bed: An assemblyman in Massachusetts proposed such a law in 2008, as did a New Jersey legislator in 2014. Both proposals were defeated. However, as the national dialogue around sexual assault continues, there may well be similar attempts in the future.
But others have concerns over the push to criminalize sexual deception. First, if we do make sexual deception criminal, it would give enormous power to police and prosecutors to regulate our sexual lives—for example, to draw the line when it comes to determining exactly what separates a white lie from true deception. “If we are going to invite the criminal justice system to adjudicate relationships, I don’t think the result is going to be a good one,” Kim Buchanan, a criminal justice researcher in Connecticut who has spoken publicly on the issue, told VICE.
Second, if we move to prosecute sexual deception, those targeted will likely be people who are already vulnerable or stigmatized. It is revealing that in the United States, one very specific, additional form of sexual deception is aggressively criminalized and prosecuted: the failure to disclose one’s HIV status to your partner. As the Center for HIV Law and Policy has documented, nearly every state has prosecuted people for HIV non-disclosure. No equivalent laws criminalize the failure to disclose diseases that are much easier to transmit, such as herpes. “There are no public health reasons to single out this particular deception,” said Buchanan, who published a paper last May documenting the history of HIV prosecutions in the US.
There have also been cases of people prosecuted for so-called “gender fraud”—lying about, or failing to disclose, their birth gender to sexual partners. Sean O’Neill wasconvicted of this in Colorado in 1996, and, while his case proved an isolated one in the US, there has been an upsurge of such prosecutions in the UK, with five people convicted since 2012.
Consent must continue to be at the forefront of all discussions about right and wrong when it comes to sex. But as the problem of sexual deception—and the ire of victims like Short—shows, for American courts, many thorny problems remain to be solved when it comes to self-disclosure and sexual ethics.
Neil McArthur is the director of the Centre for Professional and Applied Ethics at University of Manitoba, where his work focuses on sexual ethics and the philosophy of sexuality. Follow him on Twitter.