Rape

Why Is Rape a Crime?

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When a New Jersey lawmaker recently proposed expanding the legal definition of rape to include "sex by deception", many people—myself included—balked at the idea. Of course lying to get someone into bed isn't rape. But … why not? Rape is currently understood to mean sex without a victim's consent and, in most other legal arenas, consent procured through deception is no consent at all. 

Thus the riddle of "rape by deception" prompts us to consider: Why is rape a crime? Or, to put it another way, what exactly are we criminalizing when we criminalize rape? 

I delved into this at Libertarianism.org this week, in a column titled "Against Sexual Autonomy: Why Sex Law's Lodestar Should Be Self-Posession." Borrowing heavily from Yale Law professor Jed Rubenfeld, I note that under our current conception of rape—and, by extension, rape law—we ought to count rape-by-deception as rape and the courts ought to hold so, at least if we're aiming for consistency. 

Perhaps, then, our current philosophical and legal understanding of rape is the problem?

Once upon a time, the rationale behind British and American rape law was to safeguard women's "purity". Rape was a crime because it resulted in "the destruction of female innocence," as the Supreme Court of Georgia put it in 1860. Under this logic, it makes sense why men were legally considered unable to be raped, or why a married woman was considered unrapeable by her husband.

Thankfully, morality and defilement are no longer central concerns of rape law. Arguably, the foundational principle of not just rape law but most sex-related jurisprudence in America today turns on the concept of sexual autonomy.

Put broadly, sexual autonomy means someone's prerogative to determine when, with whom, and under what circumstances they engage in sexual activity; to only engage in sexual activity to which they consent. In Coker v. Georgia (1977)—a case holding it unconstitutional to sentence someone to the death penalty for rape—the U.S. Supreme Court articulated why rape is criminalized thusly: it violates an individual's "privilege of choosing those with whom intimate relationships are to be established"—i.e., their sexual autonomy.

"Rape law has been for decades a body of law in search of a principle, but has now seemingly found that principle in sexual autonomy," writes Rubenfeld. There's just one little conceptual problem: sex-by-deception. If fraud negates consent as it does in other areas of criminal law, than sex-by-deception is unconsented to sex… also known as rape. "By failing to criminalize rape-by-deception," argues Rubenfeld, "sex law fails to vindicate sexual autonomy."

Could rape law rooted in sexual autonomy, then, be the problem? And, if so, what are we left with?

Read the whole thing at Libertarianism.org.  

This is my first contribution to what's going to be an ongoing libertarian-feminist column over there, also featuring Sharon PresleyMikayla Novak, and Helen Dale. See Presley's first column for an excellent introduction to the libertarian feminist tradition. "Contrary to what some may think, the first feminist activists were not socialists, they were individualists and libertarians," writes Presley. In Novak's first column, she explores how the Austrian and feminist critiques of mainstream economics are compatible.

NEXT: Two district courts adopt the mosaic theory of the Fourth Amendment

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  1. Would makeup and breast implants constitute rape by deception?

    1. No, but bra-stuffing is right out.

    2. Nothing says honesty like getting up every morning and applying concealer.

      1. No doubt. If women want to play this game they better make sure the look just as good in the morning as they did twearking at the club.

    3. That’s just silly. Women can’t commit sex crimes.

  2. Elizabeth,

    We no longer consider rape a crime because it violates a woman’s chastity. Back when we did, it was impossible for a man to rape his wife. Spousal rape was not a crime since a married woman could never lose her chastity to her husband.

    That is not true anymore. Spousal rape is a crime. The reason for this is that we consider rape to be effectively be an exceptionally grievous form of battery. What makes rape rape is the lack of consent and the force involved in it and the intimate nature of the violation. Chastity has nothing to do with it and hasn’t for many years.

    So, unless you want to go back to the days of spousal rape being legal, I am pretty sure you do not want to have a consistent system based on rape being a crime because it violates a woman’s chastity.

    1. I am pretty sure you do not want to have a consistent system based on rape being a crime because it violates a woman’s chastity.

      I am pretty sure of this to, hence the line above saying “Thankfully, morality and defilement are no longer central concerns of rape law…”

      1. The point Elizabeth is that with the rape as a special form of battery system we have now, you can’t define sex obtained through deception as “rape”.

        1. Isn’t this why most state laws refer to “sexual assault/battery” as opposed to “rape”?

          1. I think sexual assault is a different crime. For example pinching random women’s asses on a train would be sexual assault, but not rape.

          2. Rape is penetration. Sexual assault/battery is assault for sexual gratification that doesn’t involve penetration. So, someone feeling up a woman’s ass on a subway to get off is a “sexual assault” whereas the guy who jumps out of the bushes and actually has intercourse with his victim is committing rape.

            1. Well, again, to avoid these types of questions, why not just call it “aggravated sexual assault”?

            2. Sexual assault/battery is assault for sexual gratification that doesn’t involve penetration.

              I don’t think that is true everywhere. I’m no expert, but I am pretty sure this varies among states and some states include what one would call rape under sexual assault/battery laws. Sometimes as “aggravated sexual assault”.

              In terms of plain meaning of the words, rape most certainly is a sexual assault.

              1. No. Rape is penetration. The “aggravated part” is the amount of force or violence used. Aggravated sexual assault is my pulling a knife and holding it to a woman’s throat while I grope her. Ordinary sexual assault is me groping her in the subway.

                1. In a legal context, “aggravated” just means that it includes an element that makes it worse than the base offense. The specific nature of those aggravating factors can be whatever the law in question says they are.

        2. you can’t define sex obtained through deception as “rape”.

          I agree with this even as much to say it pre-dated and defined some of our notion of traditional marriage/defilement.

          Deceiving a sex partner into reproduction extends back up the evolutionary chain all the way to invertebrates (possibly further).

          IMO, traditional marriage is/was, at least in part, when any and all deception was to be foregone or relegated to habit or ritual. The morality/defilement aspect arose as part of property law (just not the woman’s ownership of herself).

          1. Adultery and sex outside of marriage used to be crimes. One of the aspects of that system is that it deterred people from using deception to have sex since the sex itself was illegal. I wouldn’t want to go back to that system. With freedom comes responsibility. I and you and Elizabeth now are free to have sex with anyone we want married or no with no worries of it being criminal. The responsibility that comes with that is that we now have to live with the consequences of people lying to us and breaking our hearts and such.

            What Elizabeth seems to want is the old system where she didn’t have to worry about giving away her virtue on the basis of a lie with all of the sexual freedom that comes with the new system. Well sorry honey, life doesn’t work that way.

            1. You are vastly misreading my points, John.

              1. If you don’t endorse sex obtained by fraud being considered rape, then my apologizes. I thought you were doing that and misread you.

                If you do, then how am I misreading you? I don’t see how making sex obtained by consent rape is anything but an attempt to use criminal law to alleviate people from the responsibility that comes with sexual freedom.

                1. I don’t. My point was that our current understanding of rape — sex obtained without consent — leaves us open to justifying the criminalization of rape-by-fraud. Which I don’t want. So perhaps there is another way to look at rape law that wouldn’t leave us in this philosophical pickle, which is what I’m teasing out here and finish at my lib.org column.

                  1. Could sexual autonomy-based rape law be the issue? And, if so, what are we left with? Certainly few wish to return to a female deflowerment-based conception of rape. In many places, rape is still legally defined not as ‘sex without consent’ but ‘forcible sex without consent’, but this too is a conception and policy that’s trending out. Is there any legally and logically consistent way to criminalize rape without making all sorts of minimally coercive or fraud-induced sex a crime?

                    Rubenfeld thinks he’s found the answer in self-possession. “A difference exists between an autonomy right to engage in an activity if, as, or when you please, and a right not to have that activity affirmatively pressed on your against your will,” he writes (thick versus thin autonomy). One might say that rape law turns on the latter, the right not to have an activity forced on you. But we don’t acknowledge a universal right against being forced into activities or behaviors?most people feel no qualms about forcing people to pay taxes, or wear seatbelts, or refrain from smoking indoors (at the threat of criminal penalties); nor do we consider it universally unconscionable to touch someone in a way they don’t consent to. Rape’s particularly egregious violation is one of self-possession. It’s not just a matter of overriding consent but bodily autonomy.

                    1. Is there any legally and logically consistent way to criminalize rape without making all sorts of minimally coercive or fraud-induced sex a crime?

                      Yes, It is called our current system. You cannot assault someone based on fraud. And fraud does not negate someone’s consent.

                      Rubenfield is dealing with a problem that doesn’t exist. I apologized for misreading you. Totally my mistake.

                      As for Rubenfield, he is making a pedestrian an obvious point, that rape is about the violation of the body, in a opaque and unnecessarily complex way.

                      This is a very simple concept that Rubenfield manages to make needlessly complex.

                    2. But we don’t acknowledge a universal right against being forced into activities or behaviors

                      Oh yes we do. You can’t force someone to have a medical procedure against their will. You can’t force someone to act against their religious conscience.

                      Again, Elizabeth, I apologize for misunderstanding you. The root of the problem is that Rubenfield is fucking moron and a terrible, unclear thinker. I have a bad habit of assuming people are making better arguments than what they are. Frankly, the argument that rape is a crime against chastity and thus sex obtained via fraud is rape, while wrong, makes more sense than what Rubenfeld is saying.

                  2. My point was that our current understanding of rape — sex obtained without consent — leaves us open to justifying the criminalization of rape-by-fraud.

                    I think you are wrong about that. Our current system is not based on chastity or autonomy. It is based on rape being a special form of assault. Our current system, if properly understood, does not leave us open to that.

                    Assault by fraud is a non sequiter.

                    1. What would you call stifing a prostitue? Or the casting couch where the woman doesn’t get the part. While not assault, isn’t that sex by fraud?

                    2. I would call stiffing a prostitute theft of service by deception. The casting couch incident is while unfortunate not a crime. It can’t be rape because the woman consented. It can’t be fraud because the fraud didn’t result in her losing anything tangible, unless you believe her virtue is something tangible.

                      The only way you could call the casting couch fraud would be if you admitted that sex with a woman has a definite monetary value that can be determined by the court. Courts generally don’t do that.

                    3. I eagerly await Robert’s ruling that sex with a woman cost 159.95* plus tax.

                      *just typed out a number. no value judgement on what sex with a woman would be worth.

                    4. Isn’t that “plus penaltax”?

                2. Should theft via fraud be legal to? Identity theft? Pickpocketing?

                  1. Dragon,

                    In order for their to be fraud, there must be theft. And for their to be theft, you have to be stealing something. So what are you “stealing” from the woman who has sex with you?

                    Her virtue? Sure if you want to adopt a 19th Century view of women’s sexuality. Her time and labor? If you consider everyone a prostitute, sure.

                    The problem is what is so special about sex versus any other emotional commitment? If I lie to you and pretend to be your friend just so I get to go to your beach house every summer, have I not committed fraud in every bit the same way as I would if I had told a woman some lie to get her to sleep with me? If the latter is a crime, why not the former?

                    Beyond that, even if you want to call lying to a woman for sex “fraud”, that doesn’t make it rape. It makes it fraud.

                    1. In order for their to be fraud, there must be theft.

                      Wrong

                      And for their to be theft, you have to be stealing something.

                      Also wrong

                      If I lie to you and pretend to be your friend just so I get to go to your beach house every summer, have I not committed fraud in every bit the same way as I would if I had told a woman some lie to get her to sleep with me?

                      Suppose I claim to be a charity that takes kids suffering from cancer on vacation and convince you to donate a week at your beach house each summer, which I then rent out and pocket the money. Is that a crime? What have I stolen from you?

                    2. In order for their to be fraud, there must be theft.

                      There are a lot of varying definitions of fraud out there, but this is as good as any:

                      the intentional use of deceit, a trick or some dishonest means to deprive another of his/her/its money, property or a legal right.

                      Smells like theft by deception, to me.

                    3. Yes RC.,

                      For me to be guilty of fraud, I have to take something of value from you that your are entitled to and I am not. You can’t get to “sex by fraud” unless you consider sex to be services or some kind of special form of chastity.

                    4. What have I stolen from you?

                      The week’s rent. Which you pocketed for renting property you had no right to rent.

                      Geez. This isn’t rocket surgery.

                    5. Suppose I claim to be a charity that takes kids suffering from cancer on vacation and convince you to donate a week at your beach house each summer, which I then rent out and pocket the money. Is that a crime? What have I stolen from you?

                      Yes. You stole a week of free rental of my beach house via fraud. That is theft. You stole something of value from me, a week in my beech house that I could have used myself or rented to someone else.

                      The problem is that unless you want to view sex as taking a woman’s chastity or view every act of sex as an act of prostitution, my lying to a woman to get sex from them is not the same as my lying to get a free week in a beach house.

                      Regardless, even if you are right and we could somehow comoditize sex the same way we can a week in a beach house, fraud is still not rape. In the case of my deceiving you to get a week at your beach house, I am not guilty of trespass, because you consented to my being there. I am guilty of fraud because you consented based on a lie.

                      So if someone lies to get sex, that doesn’t invalidate the consent and make it rape any more than my fraud about the beach house makes me guilty of trespass. So you are still not to rape Stoney. And you are only to fraud if you think that sex is a commodity or some kind of special possession of a woman. And even then, the promise or the lie has to be concrete, not something like “I am your friend”.

                    6. I want to say that fraud doesn’t necessarily include theft or deprivation, but I can’t think of a counter example. It just strikes me as incorrect.

                      In your beach house example, you are giving up opportunity cost. Week of free rental “that I could have … rented to someone else.” What was stolen was potential.

                      The same is true in this case. What is being taken is is the potential for the lover to spend the time with another. Sex is not the commodity, time is. It has nothing to do with male/female, the one being deceived is giving up potential that could have been used for some other pursuit.

      2. And Elizabeth, you and the law prof are wrong. Our current system isn’t based on chastity. If it were, it would be impossible to be guilty of raping your spouse.

        1. John, the underlying rationale might be ditched, but if the laws it spawned being largely on the books till this day doesn’t that still means the laws are largely based on it?

          For example, children were chattels of their parents. Most probate law became settled in that era. Then the courts began to abandon that idea, yet it pops up in weird places still.

          1. No Tarran, because those laws are now based on rape being a form of battery. All of the laws that were inconsistent with rape being a form of battery, like it being legal to rape a prostitute or your spouse, were repealed. The ones that were, remained just with a new justification.

            We no longer think about rape as a crime against a woman’s chastity. Indeed, that is why the kind of “rape by deception” that Elizabeth wants doesn’t fly. Elizabeth thinks that is because the courts are inconsistent. No, that is because the courts no longer and haven’t for a long time looked at rape as a violation of chastity.

        2. And Elizabeth, you and the law prof are wrong. Our current system isn’t based on chastity.

          You mean, I’m wrong when I say the system is no longer based on purity and chastity? Because that’s precisely what both I and the professor have said. We both argued that today’s sex & rape law is based on the concept of sexual autonomy. You’ve either not read more than the first paragraph here or you’ve misread, John.

          1. Okay. But that makes your case for fraud being rape even worse in my opinion. Fraud is not a crime against human atuonomy. It is a crime against property. I haven’t taken away or violated your autonomy when I sell you a car that blows up the next day. I have unjustly taken your money. Fraud involves some kind of theft. If rape isn’t about taking your virtue, then what am I “defrauding” you of when I lie to you to get you to have sex?

            If you say “I defrauded you of your autonomy”, then I am also guilty of fraud if I lie to you to get you to do anything else. By this definition, my saying to you, if you take care of my cat this week, I will always love you, I have just committed fraud. That is ridiculous. Yet, according to your theory, if I say, “sleep with me and I will love you and leave my wife”, I have committed fraud and rape.

            Rape by deception actually kind of works with the chastity view of rape since rape involves me taking your chastity. But it is outright ridiculous when applied to rape being a “crime against autonomy” whatever that is.

            Rape is a crime against the body Elizabeth.

            1. But that makes your case for fraud being rape even worse in my opinion. Fraud is not a crime against human atuonomy.

              RTFA John.

              Someone who willingly has sex with a lover who turns out not to be what they seem was not, during the act, stripped of their bodily autonomy. The deception, once known, may render consent meaningless, or at least imperfect, but it does not retroactively negate their self-possession during the sexual act.

              She is arguing the exact opposite of what you are suggesting.

              I realize from past comments sections you have a hard on against ENB, but your reading comprehension is usually better than this.

              1. You are right she is. Honestly, to me the issue is so obvious, I can’t believe it would need to be explained in more than a paragraph. Rape is nothing but a severe form of battery, has been treated as such for the last century, and you can’t commit battery by deception.

                It is really that simple. My failure for assuming something this long had to be making the opposite point.

    2. Spousal rape is a crime.

      Stop defining my marriage!

      /sarcasm?

    3. I think rape, without physical injury, would be considered assault without battery.

  3. I don’t see how this is any different than any voluntary transaction. You aggress another by using force, fraud, or coercion to get what you want. Apply that to rape, including the standard definitions of fraud and coercion, and you have rape law defending against sexual aggression.

    The problem is, of course, that every other transaction in libertopia is governed by caveat emptor. That means that regretting your transaction after consummation is not grounds for declaring it rape. Nor is being unable to work up the courage to say no, and saying yes instead.

    1. You can’t apply fraud to sex. For something to be fraud, the person committing the fraud has to intend it to be a fraud at the time. That means you have to prove that when I told a woman “sure I will call you”, I actually didn’t mean it at the time and lied to defraud her out of sex and didn’t just change my mind later. That is not something that could ever be done.

      Rape is about force and consent, that is it. There has to be some even small element of force and the victim must not have consented or been unable to consent due to age or mental state. It is not a hard concept. It is just sometimes hard to prove in court.

      1. That means you have to prove that when I told a woman “sure I will call you”, I actually didn’t mean it at the time and lied to defraud her out of sex and didn’t just change my mind later.

        What if you texted your friend during the date and said “I’m totally lying to this girl and she’s buying it! One night stand, here I come!”?

        Then you’d have evidence of the lying. Sure, it’s a difficult burden of proof to meet, but it can be done.

        1. I changed my mind after the text. I really did mean to call her when I said it. I was lying to my friend and trying to look cool. I always liked her and wanted to call her. I just didn’t later out of peer pressure

          Unless you can read my mind at the time I said it, you can never prove beyond a reasonable doubt. And what if she lied to me and said she loved me? Can we both be guilty of fraud?

          The whole thing is ridiculous and doesn’t work.

          1. You really think a jury would buy that? It’s “beyond a reasonable doubt” and those excuses aren’t all that reasonable. You can only do so much Grubering before someone calls BS.

            1. If they wouldn’t, they should. And if they don’t, think about what you are doing here, you are sending me to prison and convicting me as a rapist because you don’t believe that I really wanted to call her. I am going to prison for an act she consented to and presumably enjoyed.

              Is that the kind of system you want? You think that is justice?

              1. I’m not advocating for this system. I’m just saying it is possible to prove beyond a reasonable doubt that someone is a liar.

                Call me devil’s advocate if you want.

                1. In the end, John, I believe that people should be liable for any harm caused by their fraud. In these cases, it is possible to prove the fraud, but it is going to be impossible to prove that the fraud caused any significant harm. Such cases should be laughed out of court. So I agree with you on what the end result should be.

                  1. “Such cases should be laughed out of court.”

                    To get to court, you would have to have arrest/indictment, booking, jail/bail, paying for lawyers (the defendant or the taxpayers) court dockets filled, etc.

                    Not for “I swear I will love you til the end of time”.

                  2. [to John]…I believe that people should be liable for any harm caused by their fraud.

                    Which John addressed by stating that the harm must be monetized or we must go back to including “losing one’s virtue” as a harm, thereby eliminating spousal rape.

          2. And what if she lied to me and said she loved me? Can we both be guilty of fraud?

            It’s a woman’s prerogative to change her mind, right?

            Lovesick guys exist, but women are, from a young age, conditioned to deceive themselves, their partners, and each other about love/sex.

          3. No John, the woman can never be guilty of fraud. Even if she applies her makeup just right to look a few years younger. Or wears a push-up bra. Or says she loves to give blow jobs. Duh, what kind of cis-lord are you?

      2. Perhaps fraud should merely be a civil action. If I promise a girl that i’ll use a condom, but I don’t, she should have some recourse against me when she gets pregnant.

        1. If you want to make the most private and intimate parts of their lives subject to civil litigation and by extension judicial regulation, sure. I don’t think you are going to like how that works out though.

          1. Probably not, but the other end of the spectrum isn’t very pretty either. Just because you make a promise in pursuance of sex shouldn’t mean that you’re somehow deemed immune.

            1. Probably not, but the other end of the spectrum isn’t very pretty either

              The other end of the spectrum is perfectly fine. It just requires you to take responsibility for your decisions as to whom you have sex with. If you want the freedom to have sex as you choose, accept the responsibility of being careful not to sleep with a liar or a horrible person.

      3. You can’t apply fraud to sex. For something to be fraud, the person committing the fraud has to intend it to be a fraud at the time.

        More importantly fraud has to involve an exchange of tangible value to be actionable.

        I may attend your party because you lie to me about some third party being in attendance.

        But no exchange has taken place so I cannot sue, let alone prosecute you based on the fraud.

        The problem with expanding the definition of rape to comport with fraud is that doing so requires that sex is transactional – that the woman is giving something of value to the man – which is getting dangerously close to the woman’s chastity argument.

        1. It is exactly, the woman’s chastity argument. And indeed, Elizabeth admits that. Elizabeth is wrong in thinking that we still base the crime of rape as a violation of a woman’s chastity. We don’t do that anymore.

          1. If you think about it at all, the chastity argument is directly related to the idea that woman are the property of their fathers or husbands.

            Female chastity was desirable in that it raised the value of the woman – in deed the concept that rape ‘ruined’ an unmarried woman was common under that paradigm.

            1. Absolutely. And that concept has been long dead in law. We don’t recognize alienation of affection torts anymore. It used to be that if another man stole my wife, I could sue him for the damages he did by taking her. And indeed my wife could do the same to my mistress. We don’t allow that anymore because spouses don’t have any special claim in law to the other spouse’s affection.

              1. I don’t think that’s true, John. They may be difficult to prove but I’m pretty sure quite a few states still allow civil actions for alienation of affection. It falls under the rationale (no matter how questionable) of keeping marriages together.

                1. No. It is only recognized in seven states

                  http://en.wikipedia.org/wiki/A…..affections

                  It has been almost entirely abolished.

                  1. Ah, seems to be predominantly in southern states (which would explain why I had to learn about it in law school).

          2. Elizabeth is wrong in thinking that we still base the crime of rape as a violation of a woman’s chastity.

            Except that I never said that.

            1. It’s still fun to watch.

              Everything makes perfect sense if you start from the law journal abstract, then read your column and finally the H&R post. It isn’t so clear in the reverse until you read the abstract.

              our current philosophical and legal understanding of rape is the problem

              The commenters have a different current understanding. The one you are arguing in favor of.

              1. That is exactly it SIV. I assumed that ENB meant “rape as a assault” when she said that, because that is what I view as our current legal understanding of rape.

                This is why I missed her point and thought she was arguing the opposite of what she was.

        2. Extend that to prostitution. If the woman is not giving me something of value, what am I paying her for?

          1. Her labor.

            1. Fair enough.

              1. It would be fraud if you agreed to pay her a specific amount for her time and then reneged after the fact. Just as it would if you had agreed to pay a woman to clean your house and then failed to do so after she had fulfilled here part of the bargain.

          2. what am I paying her for?

            To leave.

            Duh.

      4. I actually kinda like the idea of being aable to mount a “she was crap” defense.

      5. Suppose someone claims to be a soldier in order to convince another to have sex with them? Suppose someone claims to not be married? Suppose someone claims to not have AIDS (despite knowing full well they do)?

        Should all of those be okay because “caveat emptor”?

        1. The AIDs case is different because they are effectively poisoning someone. The crime there is not having sex with them, it is giving them a deadly disease.

          In none of those cases are you guilty of rape. In the HIV case you are guilty of giving someone a disease. The sex is just the method. You choud have given them AIDS by putting a vile of your blood in their food and never had sex with them and you would be guilty of exactly the same crime.

          As far as the rest of them, what makes one lie so bad that it is “rape” and another lie not? You can’t set up any kind of a standard there. Once you say consent based on a lie is no longer consent and the resulting sex is rape, what matters is the lack of consent. If it is not there, ti is rape. So any lie, no matter how small that causes someone to have sex is rape. You can’t say “this lie is rape and this other one isn’t” because what matters is not the lie but the lack of consent. And consent is not gradual. It is either there or it is not. And if it is not, it is rape no matter how small the lie.

    2. OK, but what about someone who tells of a recent bad experience to get some pity sex, and it turns out the story was a lie?

      1. Did she hurt you?

      2. Off to the slammer he goes! Bubba will be waiting…

    3. Apply that to rape, including the standard definitions of fraud and coercion, and you have rape law defending against sexual aggression.

      Except, exactly what lie is specific to the transaction of having sex? I don’t think you can apply fraud and coercion principles if the lie doesn’t exist as a part of that particular transaction.

    4. Fraud is a very slippery slope to walk on. I can just see it:

      “He was driving a Ferrari and bought $1,000 worth of bottle service at the club and we ended up going back to his place. After we had some fun I found out that he only makes 30k a year as a janitor at the elementary school. He totally raped me.”

      1. Well, let imagine that he also claimed that he was a specific famous movie star. “My name is Fabio, you may have heard of me!”

        Now is that fraudulent enough to qualify?

        1. If I bought a lawn mower, but thought it to be and really wanted it to be a Ferrari, have I been hurt?

    5. I don’t see why making sex-by-deception a crime is such a terrible idea.

      Fraud is fraud, whether your using it to obtain sex or get someone to write you a check.
      And obviously legal standards for fraud aren’t as lax as “he told me he loved me!”
      So standards for sex-by-deception would likely end up being constrained by things that would be prosecutable as fraud in other arenas. For instance, impersonating someone else, using a fake ID, claiming to be a CIA agent when you are actually a pizza driver. You can’t be convicted of fraud just because you tell a customer you’re going to spend the money on toys for homeless children and then go home and buy a new playstation. Fraud requires things like forging a signature or failing to disclose information that you are legally required to disclose.

      1. It is a horrible idea for the reasons that fluffy lists below. He says it better than I ever could.

        Sex is like friendship: it’s a non-discrete personal relationship. It cannot therefore be reasonably tested for truth or falsehood in the absence of an explicit contract. You can’t test something that’s too open-ended to be discretely identified and named.

        Look Hazel, sex is risky. If you want sexual freedom, understand that comes with the risk of heartbreak and the responsibility of choosing who you sleep with.

        If you are so worried about having sex based on a lie, close your fucking legs and be a bit more circumspect about whose assurances you believe. If you jump into bed with someone who hardly know based on their assurances, you have only yourself to blame if those assurances turn out to be a lie. No one made you go to bed with him.

        1. Well, you know it could go both ways.

          Let’s say you’re dating someone on the assumption that you plan to marry and have kids. You’ve disclosed up front that you absolutely want kids and wouldn’t date someone if you couldn’t have them. Unbeknownst to you the woman in question hasn’t disclosed that she had her tubes tied because she doesn’t want them. You get married and then afterwards she claims she is infertile.

          Fraudulent?

          1. IN a legal sense, no. There is no fraud going on there, just lying. And the risk that the other person is lying and is immoral is inherent to all human relationships. If that happened to me, it would be unfortunate but it would not be criminal. It would be the result of me being a poor judge of character.

            Think of it this way Hazel. Would you have any sympathy for a rich man who had a fling with a woman who assured him she was on birth control only to find out later she was pregnant and he was now stuck making her a rich single mother? Is that criminal or is it a lesson to rich men to be careful where they put it? I am going with the latter.

          2. Criminal?

            Remedy is divorce or annulment.

  4. This is the kind of fundamental issue I’m interested in, thanks.

  5. Um, RAPE CULTURE.

    That is all.

  6. OT: my law school definitely did not fall victim to the trigger happy SJWs calls for banishment of rape law from the classroom. One of my exams went all out on a rape hypo where in the last sentence it was revealed that the girl was dead the entire time.

    You could hear the groans as each of us finished reading the question. What an unpleasant exam.

    1. ” it was revealed that the girl was dead the entire time.”

      OMG that’s so funny!? That same thing happened to me!

      in a test! Why are you looking at me funny?

      1. I LOL’ed. That was teh awsum 🙂

    2. Heh. If I were administering that exam, at the first groan I would have had this play across the lecture hall’s speaker system.

  7. “This is my first contribution to what’s going to be an ongoing libertarian-feminist column”

    Because what we were really missing was more identity-politics.

    Treating each other as individuals was getting old anyway.

    1. Wow – patriarchy much, cis-GILMORE?

      1. Individualism is patriarchy.
        Colorblindness is racism.
        Not taking is giving.
        Not giving is taking.

      2. You call *this* ‘patriarchy’?

        We’re Doing It Wrong. Break out some incense and Ouzo and let’s get this shit started.

          1. Beards up
            Ho’s down

    2. Libertarian and feminist is redundant. What libertarian believes men and women should have different rights and protection under the law? Unless of course when you say feminist you mean women should get equal pay while taking three years maturity leave, paid for by her coworkers that have to pick up the slack.

      1. This times a million.

      2. You sure about redundant? More like an oxymoron.

        1. I’m being generous and assuming the feminist that claim they want equal rights are being genuine vs feminist who want special rights.

      3. Libertarian and feminist is redundant.

        So you’re all feminists then?

        1. If you mean men and women should be treated equally under the law then yes, all libertarians are feminists.

          1. If you take feminism’s definition at face value

            “”advocacy for political, social, and economic equality w/ men.””

            then libertarianism assumes ‘feminism’. it would also make any similar political movement for ‘racial/sexual-orientation equality’ redundant…

            insofar as Feminism is solely concerned with itself as an ‘interest group’ attempting to gain power for its own sake, then it has nothing to do with libertarianism and is in fact at odds with the basic idea of individuals being treated as equal under the law.

            Calling something “Feminist Libertarianism” presumes that ‘libertarianism’ by itself is in some way ‘gender biased’ and has inherently sexist presumptions.

            I missed that part. Oh, I know…. ‘TWTANLW’……or something

            I’m not sure ‘plain old libertarianism’ was ever insufficient to address feminist concerns. Reason has had a dozen female contributors who never saw the need for a ‘feminist’ version before.

            Plain-old libertarianism is sure as shit more than enough by itself to counter the ubiquitous hyperbolic claims of the Rape-Culture-Panic-Mongers.

            If wrapping a pink bow on libertarianism helps to end the female self-deprecation as “Token“…well, then more power to y’all.

            1. As a footnote…

              – the “experts”* on this sort of thing at BleedingHeartLibertarians have a breakdown of their own case on how libertarianism and feminism conflict, and how they (she?) sees libertarianism as a preferable prevailing principle.

              *note: this same woman thinks everything Thomas Jefferson said/did is tainted by Slave-Rape, so… call that a slight caveat to the presumption of sanity…

  8. In most cases where deception is illegal, its because of a qualitive change in what was agreed upon. If you consent to have sex with a person because you thought they were rich, or really smart, or loved you, then deception on their part doesn’t change the sex itself.( You may have a. case though if someone promised you something in exchange for sex, then didn’t deliver)

    Gave myself an idea: What if a devoutly Christian person has sex with their spouse based on the assumption that said spouse would remain true to their wedding vows( specifically till death do us part) then the spouse files for divorce. Did that consensual sex retroactively become rape?

    1. In most cases where deception is illegal, its because of a qualitive change in what was agreed upon. If you consent to have sex with a person because you thought they were rich, or really smart, or loved you, then deception on their part doesn’t change the sex itself.

      Thank you for putting it much more eloquently than I did.

    2. You’re on to something.

      What if a man has sex with his female spouse based on the promise that said spouse would remain true to her low-carb vows, then the spouse discovers the joy of pasta?

      Thinking a little more along these lines, one soon concludes that there are millions of men that have been retroactively raped.

    3. “till death do us part”

      missed this before commenting

  9. I note that under our current conception of rape?and, by extension, rape law?we ought to count rape-by-deception as rape and the courts ought to hold so, at least if we’re aiming for consistency.

    Hold on a second here. That isn’t at all clear to me. I think we first have to define “rape-by-deception”. A person’s willingness to have sex with someone is a discrete unit. And that unit is presumably distinct from our evaluation of a person in their totality. If you invite me to lunch for some purpose other than having lunch, I don’t think it’s reasonable to say you’ve violated my rights. But, that would be the implication of that claim.

  10. Could rape law rooted in sexual autonomy, then, be the problem?

    Sexual, not physical or bodily or corporal autonomy? It’s important to trace a metaphorical electrified perimeter around a special imaginary sanctuary we’ll call the Sexual. Violations of autonomy everywhere else is fair game, as long as the violator is properly credentialed.

  11. So why don’t we treat rape like any other type of assault? Why isn’t rape handled the same way as being punched in the face? Keeping in mind that some people actually look for opportunities to get punched in the face, and some people actually get paid for it.

  12. “I’ll never leave. I love you.”

  13. Whoa. If reason.tv is going to be publishing insane feminist trash like this, I think it will be time for me to move on. I thought the editors here (as opposed to most online publications) weren’t idiots. Was I wrong?

  14. I don’t think you’re making a proper analogy.

    If I deceive someone into buying something from me, we don’t consider it theft. It’s just fraud.

    Similarly, if I deceive someone into having sex, it’s not rape, it’s just fraud.

    In many cases, fraud isn’t a criminal offense, it’s only relevant in civil court if you were trying to seek retribution for damages and I think you’d be hard-pressed to convince a modern American jury that agreeing to sex based on some lies damaged anything but a person’s ego.

    1. What if you’re a doctor and you tell someone that a new, expensive drug is safe, even though you know it’s going to kill them? Is that fraud, or murder?

      If your fraud leads to harm, aren’t you guilty of the harm too? I think it just comes down to quantifying the psychological harm of regret, which isn’t going to be much in these cases.

      1. That is murder. You just poisoned them. If I tell you the arsenic that is on the table is sugar so that you will put it in your coffee, I am guilty of murder not fraud.

    2. one does not have to be defrauded to regret a transaction.

  15. Women are equal to men in all things . . except drinking & sex and critical thinking & sex and so on. So they need special protections in all matters regarding sex.

    1. Well they are obviously too stupid too know when they are being coaxed into sex. And they also obviously all really hate sex.

  16. “My other car is a Porsche.”

    1. What if your other car actually is a Porsche ?

      1. What if it’s a 210k mile 924?

  17. I have an idea. How about all the women who obviously don’t want to have sex with men (i.e. all the women coming up with all these checklists that turn men into women and take all passion and fun out of sex), just not have sex with men. And then we can let all the women who do want to have sex with men continue doing so. i don’t know any women who want men to play the feminist sex rule game. As far as lying goes, the only men who should be arrested for rape for lying are pigs who have sex with with prostitutes and then arrest them. Punishable by having their tiny little pig dicks cut off.

    1. No JB, you are asking Elizabeth to take responsibility for judging the character and assurances of the men she sleeps with. You can’t expect such a thing from her. She is a woman, a delicate creature.

      This is what white feminism in 2014 looks like.

      1. I never really realized how many women don’t like sex. It’s evidently so horrible that if someones talks you into it, it’s should be a felony. What if a girl tells me that if I go see the movies Valentine’s Day with her that she’ll have sex with me but after I go I find out she was lying. That seems much worse. A bad movie is worse than bad sex any day. Although I won’t try and have her arrested. I’ll just learn from my mistakes.

        1. Or is it that they do like sex but just want the power to punish men who don’t fulfill their post-coitus fantasies.

      2. Isn’t the real issue here that only women are capable of regretting sex?

      3. Lordy, can you stop? You’re mocking me based on some strange idea in your head of what I think, rather than on anything I’ve actually written about what I think.

        1. Just let John tilt at his windmills.

  18. ‘Till death do us part

  19. Shouldn’t we really have “degrees” of rape?

    For instence:
    First-degree Rape: Violent rape, rape by drugs, active resistence
    Second-degree rape: Sex without consent, inability to consent due to incapacitation, no active resistence
    Third-degree rape: Sex by deception

    1. Forth-Degree rape: Sex

      1. Fifth-degree rape: Male Gaze

        1. Sixth-degree rape: Smiling an saying Hi (unless you’re super hot and make her giggle)

          1. Cut to the chase man!

            Going to my job, taking care of my kids, keeping my house and property in good repair is what, like 9 or 10th-degree rape?

    2. Sex by deception is not fucking rape, period.

      1. What if you look like a celebrity and claim to be that celebrity? Huh! This is why we need moar lawz!

        1. Yes means yes, except if you lied to me.

  20. Here’s why you can’t apply the concept of fraud to sex:

    All other transactions apply only to elements or attributes or possessions of each party. Because elements or attributes or possessions can be discretely and finitely defined, you can test them for true or falsehood.

    Sex is like friendship: it’s a non-discrete personal relationship. It cannot therefore be reasonably tested for truth or falsehood in the absence of an explicit contract. You can’t test something that’s too open-ended to be discretely identified and named. I can’t be reasonably expected to know what aspect of my personality or conduct is leading you to be my friend, or to have sex with me. You therefore can’t reasonably subject this to a fraud test. The alternative is to argue that anyone has ever told a lie to anyone, ever – or has ever changed their mind, ever, on any topic – has committed rape. “I wouldn’t have had sex with you if I had known X about you,” is not a reasonable basis for a tort or a criminal complaint, because in the absence of an explicit contract it’s just not my fucking problem to identify or keep track of exactly why you like me.

    1. Exactly that Fluffy. And that uncertainty is why sex is emotionally dangerous. The old French “Dangerous Liaisons” was called that for a reason. And the old moral order didn’t warn against sex outside of marriage because it hated women and fun. Sex, especially for women but for men too, in addition to the risks of pregnancy and STD, can often be emotionally risky.

      The price of sexual freedom is assuming those risks. If you never have sex until you are married and make a good choice about who you marry, you don’t run much emotional risk. The more people you have sex with, the more emotional risk you run.

      I am fine with that and have no problem with sexual freedom. Elizabeth and a lot of women like her don’t like that. They want the sexual freedom but they want the law and society to intervene to mitigate and deter against the risk. That is really all this thing is about; women wanting sexual freedom but not wanting to assume the responsibility and emotional risks that go with that.

    2. Personally, I generally agree, but I think there are SOME cases where the deception is sufficiently deliberate that you could say a person was in some way defrauded.

      The impersonating a celebrity example is pretty fair. There could be examples of con-artists would would create a fake persona to seduce women.

      In these cases, the evidence of fraud would be abundant. There would be fake IDs, forged signatures and so forth.

      1. But what makes those cases different than other cases other than you don’t like them? What is the legal principle that causes you to think a man saying “Babe I am with the band and can get you back stage” is a rapist and the man who says “Babe you are fabulous and lets go out next weekend” is not?

        That is just not a workable legal standard Hazel. The people who lie for sex are immoral. But not every immoral should be or can be considered a crime.

        You are still just asking the law to act as an insurance policy relieving you of the responsibility of choosing who you sleep with well. Seriously, is it too much to ask that women use some sense and not believe everything men tell them before going to bed with them? Are women just that fragile?

        1. Seriously, is it too much to ask that women use some sense and not believe everything men tell them before going to bed with them? Are women just that fragile?

          Not just that fragile, but lopsidedly idiotic.

          “I am Fabio!” excuses them from shedding their clothing but, “I *am* 18.”, “I am *only* 18.” or the “rule of three” are completely acceptable foils that men are legally obligated to circumnavigate at their own (increased) risk.

      2. Why would we care about this? If sex is so impersonal that you’d sleep with someone simply because they’re a celebrity what harm could possibly come to you?

  21. ENB,
    Can we charge women with slavery who lie about taking birth control, get pregnant and force the father to support their bastard for the next 18 years?

    1. Hot damn!

      I read the whole article and am scrolling through ENB’s responses and I’m not seeing an example of obtaining sex by deception, or really a definition at all.

      Seems pretty damned important to actually define the kind and degree of deception we’re talking about here since, as FlMan implies, the sexes deceive each other about very important issues constantly.

      So…please womynsplain me how this is NOT another vaguely-defined criminalization of female sexual regret.

      1. ^^THIS^^

        See my response to Hazel Meade below. By what legal standard do we say some forms of “deception” are rape and others are not? Is “I am with the band and can get you back stage” rape but “I love you” not? And if so why?

        I can see no way to distinguish those two cases other than one seems to involve a more concrete and definable promise.

  22. I can see deceptive sex as rape standard applying to prostitutes because those arrangements have exact contracts – both service terms and payment are specified, and if terms are violated, indeed it is non-consenting sex, but relationships are usually not thought of as strict business contracts, no?

    1. That wouldn’t be rape. It would be fraud like any other. We don’t punish fraud the same way we do rape. If you have sex with a prostitute and don’t pay her, you are guilty of theft of services by decpetion, not rape.

      1. Your position makes sense, but the article says:

        “If fraud negates consent as it does in other areas of criminal law”

        Is it true? Not a lawyer here, but it would seem that if this is true, it would imply nonconsenting sex in case of contract violation.

        1. Because fraud doesn’t always negate consent. Sometimes it just negates the person’s rightful claim to something. I consent to giving you my money. But if I did that on the basis of a fraudulent claim on your part, my consent is still valid, I just have a valid claim to get my money back. It is not my consent to giving you the money that is negated by the fraud. It is your claim to keep my money that is negated. Take away the fraud and you still have a claim on my money.

          Elizabeth is fucking up the concept of fraud beyond all recognition.

          1. Ah, makes sense.

            So the consent to action is still valid for both parties.

          2. Yeah, the phrase “fraud negates consent” rubbed me the wrong way.

            If I offer to sell you the Brooklyn Bridge for 120 bucks, and you agree, then I committed fraud because I don’t own the item I agreed to sell. Consent has nothing to do with it.

            If I convince a woman to give me money to cover my living expenses until my rich uncle’s will is executed and then I will marry the woman but I don’t have a rich uncle that just died, then the woman has a basis to take me to court to get her money back. But if she slept with me thinking she was going to marry a soon-to-be-rich dude, that just ain’t rape.

  23. I only sleep with decent respectful women. If a woman represented herself as such but revealed herself a manipulative lunatic afterward could I have her charged with rape? If not, how would this be different than someone claiming to be a secret agent beforehand who turned out to be a GS-10 paper pusher?

    1. You see, you have a penis. She has a vagina.

      That makes the two things utterly and completely different.

    2. Its not Marashal. Fluffy nailed it above. Sexual relations are just a very intense and intimate form of friendship. And choosing your friends is hard. And the consequences of choosing lousy ones sometimes nasty.

      What Elizabeth and Hazel and people like them are arguing for is a system that uses criminal law and prison to provide an insurance policy against them making a bad choice about whom they sleep with. They want to have some assurance that the guy who tells them “I will call you tomorrow and I really like you” is telling them the truth because if they are not, they can send the guy to prison for rape.

      That is all that is going on here. This is just women not wanting to assume the responsibility and risks that come with sexual freedom and promiscuity. Sorry, but that is not the proper role of criminal law.

      1. I’m not making a normative argument, I’m wondering what the law would actually preclude (and whether those pushing it even understand what they are proposing to outlaw).

        1. They don’t understand it at all. And they don’t want it to apply to all cases. They just want it to apply to special cases that might affect them.

          1. I think you’re being too judgmental toward the author. She’s walking through the legal ramifications. She hasn’t announced support, only that this reading fits a certain legal tradition. There are other traditions – like adultery as I note below – and even if this were the only one she would still be able to conclude there are distinguishing characteristics or that there should be an exception.

            Ultimately I think you’re right that sexual decisions (like friendship) inherently incur this risk in a way where it cannot reasonably be eliminated, whereas commerce does not. But walking through the issues step by step is still worthwhile.

      2. That is all that is going on here. This is just women not wanting to assume the responsibility and risks that come with sexual freedom and promiscuity. Sorry, but that is not the proper role of criminal law.

        In some/many cases (not ENB exactly) there’s plenty more to see.

        There’s an expectation or even litigating from men to give them what’s not theirs to give.

        The problem comes in with adult girls walking around, effectively, asking other people ‘Am I pretty/desirable?’.

        There are plenty of guys who will, effectively, answer “I’ll have sex with you to prove you’re pretty.” some are even stupid enough to say “I’ll spend the rest of my life trying to convince you you are.”

        In these cases nothing prevents the woman from claiming the/any/all men deceived her about her prettiness.

        I’m not concerned about handing reasonable women more power. I’m concerned about handing social nutjobs (more) legal weapons.

        1. As you should be Mad. But understand the reason why the women who are not nut jobs might find such a system attractive is because they want to deter men from lying to them. They want to be able to sleep with men without assuming the responsibility of judging that man’s character and the truthfulness of his assurances, if any. And that is bullshit and totally counter to any concept of personal responsibility.

      3. A woman is lying to herself if she completely believes he will call the next day. Rape

  24. Another thought, how does this fit with not pursuing adultery (presumable non-consented)? A spouse in a supposedly monogamous relationship discovers his partner is having an affair. Long held jurisprudence (with the full support of self-appointed women’s rights groups) have argued such personal behavior is none of the courts business.

    But surely this would be considered material fraud and therefore rape if the cheating spouse also had sex with the partner.

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  26. Obtaining consent by deception implies that people are bargaining for sex.
    I have sex to give and obtain pleasure. I don’t bargain for it.

    1. Just because you doesn’t mean no one else does. This is like arguing that carjacking isn’t actually a crime because I don’t own a car.

  27. So, I read ENB’s article above as saying “Hey, there are some important inconsistencies that need to be pointed out and discussed. I’m going to ask a few questions to help that discussion along.”

    Calm the hell down, John.

    1. You want him to stop with the malapropisms, too ? Get real, man.

  28. Not much to add. “Rape” means (to normal people, not delusional SJWs) a form of physical attack. Because sex involves physical contact, you have to distinguish normal sex from rape (unless, again, you are a delusional SJW). That’s where consent comes in.

    And, amazingly, consent generally also a defense to assault, although only to the extent of what was consented to. Thus, a boxing match isn’t an assault, unless one of the boxers pulls a knife.

    We’ve outgrown rape as a violation property rights or chastity or whatever, and treat it like what it is: a variety of assault.

    “Assault by deception” is just a category error. It makes no sense. Stop trying to use laws against a crime of violence to police non-violent interactions, like fibbing to get laid.

    1. Back in the dark ages, if a guy lied to a girl to get into her pants, then her brothers found him later and gave him a reason to visit the ER. The police wrote it up as “dude had it coming”.

      But in our current enlightened world, people are not allowed to seek justice for wrongs committed against them without working through the all-being, all-seeing state. So that means that all bad behavior has to be defined as a crime of some sort. And the agents of the state must deal with every slight imaginable to ensure justice for all (except for those groups that have historically been overlords over any grievance group that currently has sway over the government).

    2. The assault by “deception” is an excellent way to look at it. If I told you, hey RC, I will pay you $200 to come and fight me at our weekly fight club this week”, and then after the fight I welched on my $200, I am guilty of fraud. My fraud doesn’t negate your qualified consent to the boxing match and make me guilty of assault for hitting you.

      In fact, the rape by deception advocates are arguing for something even worse than that. At least with my welching on the $200, I am welching on a tangible promise. The rape by deception advocates want to make welching on an intangible promise like “I will call you later” into a crime.

      The whole thing is absurd and counter to any rational system of law.

  29. If there were no rapists or hookers, ENB would have nothing to write about.

    1. Uh, HELLO?! HeteropatriarchicalCISnormativism alert?

  30. The definition of “rape by deception” makes no sense. If I lie to someone and they consent to doing something, how does the lie negate the fact that they consented? The only way it doesn’t is if we’re to believe that consent, or at least some consent, is not actually an exercise of free will, but contingent on what other people say. Lies are powerful, but they’re not that powerful. It wouldn’t fly to say, for example, “Your honor. I only killed him because Steve assured me that he was about to turn into a zombie. I can’t be responsible for my actions because Steve tricked me.” A lie doesn’t remove your free will.

    1. You are exactly right Lap. See, RC’s example of the ridiculous nature of the term “assault by fraud”. It just doesn’t work.

    2. A lie doesn’t remove your free will.

      Exactly, you chose the lie over the truth. It means you didn’t choose “correctly” (by whatever measuring stick you want to use), not that you didn’t have a choice.

    3. the entire “rape by deception” theory is implying that “informed consent” is required before sex, such as is generally required for doctors to perform a surgery on you.

      However, the problem is that there is consent to the act(s), even if it such consent is uninformed or misinformed or otherwise obtained fraudulently.

  31. You’re mocking me based on some strange idea in your head of what I think, rather than on anything I’ve actually written about what I think.

    Elizabeth, meet John.

    1. We can’t just troll you Brooks. Sometimes we need some distraction least we be too hard on your delicate sensibilities.

      But don’t don’t worry Brooks, you are still the primary person to fuck with.

  32. It must be nice to have the government pay you to bang your spoon on your high chair all day.

    NOTHING LEFT TO CUT.

    1. It wouldn’t be without you Brooks.

  33. Oh, and BTW, ENB:

    Very interesting topic. Keep ’em coming.

    The great thing about analyzing the latest totalitarian/proggy ideas here is that after digesting the back-and-forth, you can generally slap them down quickly and efficiently if you seem them in the wild.

  34. Nobody has mentioned this: if “rape by deception” is a thing, then every pre-op transexual, and maybe every transexual, does it. Their DNA proves they aren’t “really” women (or men). It’s sex by deception, right? Assuming they don’t fess up ahead of time, and I doubt if many trans hookers do that.

    1. I rather suppose that any transexual who can pass as a woman, pre-op or otherwise, appeals largely to men who want sex with a transexual and charge a premium accordingly.

      1. And yet transexuals keep getting assaulted or murdered by guys who thought they were females.

  35. there can be no crime of rape by deception for the following reasons:

    1. All guys and most women would pretty much be criminals. If that’s the result of the law, it’s a bad law.

    2. Women know that men will lie to get them into the sack. Thus, they are basically taking a known calculated risk that the guy they’re about to bed has not deceived them. Assumption of the risk applies. Also, it’s in women’s best interest to be wary of this fact rather than assuming the law will fix things later on.

    3. Men generally don’t care whether they’re being lied to for sex. In fact, it’s probably necessary in many cases. Contributory negligence applies.

    4. If guys can’t deceive to get sex, they might use more violent means. It’s a perverse incentive to be sure, but it seems a reasonable tradeoff given the other reasons stated above.

  36. I was tempted to say that women would oppose “rape by deception” on the grounds that women would then be rapists as often as men, but I hesitated just long enough to follow your link and discovered, not surprisingly, that the proposed statute seems to make rape by deception a crime only when a man deceives a woman.

  37. Two words: forced association.

    Also, what distinguishes “12 yrs a Slave” from “3 yrs until my 15 year Pin.”

  38. It is not the violence of the act; some people pay for that.

    It is, entirely, whether the association is free or forced.

    Period.

  39. Fraud and deception is a means of forced association, but what does that even mean in the context of rape?

    He told me he had more money and I am not really a whore?

    He told me he was better at this and I am not really a whore?

    He told me we were going bowling, not balling and it took me a little longer than you might expect not to notice we weren’t changing shoes?

    He told me that was an anal thermometer?

    What, exactly, is a hypothetical act of ‘deception’ that is rape???

    Conversely, what is ‘rape’ that is preceded by deception that isn’t also ‘rape?’

  40. The author launches into an analysis of ‘sex by deception’ without providing a single instance of what that would be?

    “He told me it was an anal thermometer! He lied!”

    Yes, and then he proceeded to rape. But what is the -separate- act that is ‘sex by deception’ that currently isn’t rape?

    Be precise; give an example.

    “He lured me into his bedroom, telling me he wanted to show me his stamp collection…” Yes, and then he raped you; but the crime is the rape, right?

    Up until this moment in history, have we only been convicting folks who jump out of bushes and knock women over the head?

    Where are the examples which define this ‘new’ offense?

  41. Would not the problem be more easily resolved were we to eliminate the criminal justice system, and replace it entirely with a tort- and contract-based civil justice system? Fraud would generally fall under contract violations and force being mostly (unless otherwise specified contractually) as tort violations.

    I strongly suspect that this is simply one of the many cases where the concept of criminal law fails to effectively model reality.

  42. Shorter version of this whole article/thread could have been:

    Q: Sex by “deception” is not rape, right?

    A: Correct!

    Q: But we’re SURE it isn’t, right?

    A: Yes we’re fucking sure.

  43. Most of the posts here seem to be written by people who are solely concerned with shoring up every aspect of their right to debauchery and then some, and who therefore resent any inference that certain acts of sexual hedonism could potentially be rights violations.

    The initiation of force and fraud are the two kinds of rights violations, and they are always rights violations. Where there is fraud, there was not consent. People don’t “consent” to be defrauded. Otherwise, you would have to declare that Madoff didn’t defraud anybody because people “consented” by giving him the money, so he should be let out of jail.

    That said, what can objectively be called fraud in the realm of non-marital sexual relations is rare. I think the identical twin case was the impetus for this debate, and that is certainly fraud if anything is. Failing to disclose a transgender condition or venereal disease is also fraud, and in the latter case, other charges may be pressed (e.g., manslaughter in the case of AIDS).

    On the other hand, wealth status, interest, or loyalty are not rationally related to non-marital sexual choices. If you think they are, it is only because you want to have your cake and eat it too. If you have non-marital sex, you are forfeiting any claim to values other than physical pleasure. If you don’t like that, too bad. No legal commitment, caveat emptor. Only in marriage is the other person’s finances, interest in you, or loyalty a legitimate expectation and claimable.

  44. “Could rape law rooted in sexual autonomy, then, be the problem ?” How so?
    Make use of a hooker, then refuse to pay and walk away? This is a commercial crime, breach of contract – but the contract may be difficult to enforce. But there may be the small matter of a pimp, with a knife, and a concern for his share of the “earnings,” so walking away may not be wise. Decieve a girl with a promise of marriage, and an action for breach of promise is a possibility – but getting proof may be hard: iff the girls is stupid. (“But I trusted him!”) Get the woman drunk, (“shocking!”) or drugged, (date rape drugs) and you clearly will have difficulty claiming consent – but will the woman wish to press charges in the morning ?
    A legal basis in corporeal autonomy is not a problem, in praxis. The problem is proving the actual sequence of events, which by their very nature tend to be occult – a couple alone, in a private place, in the dark, in toxicated – with lots of alert, concerned sober citizens, with cameras, note pads, shorthand skills, tape recorders, recording all the details of the run up to the “alleged rape” when “he said” and “she said” and then they… do me a favour.- Most rape is not reported to the perliss, and conviction rates are low because there is always a LOT of doubt to be paraded.
    This is not to condone rape. Whenever I rape a woman, I always take care to “smooth it over” afterwards, with soft words and heartfelt apologies. So, I don’t rape.

  45. The article is a teaser; ENBown makes an intellectual and liberty oriented case against ‘deception rape’ in the linked piece.

  46. Consistency is not a requirement of law (just, for some, a general policy to follow).

    And even if the law is written consistently, it will be enforced selectively by SJW judges. And the outcome oriented SJWs will have no problem w these results because outcome is more important than intellectual honesty or fairness. SLWs will get to where they want to get to anyway they can. Consistency, fairness, even-handedness be damned.

    As a heavy duty litigator told me when I first began to practice law “You get justice in the next world, in this world you get the law.”

    Ain’t THAT the truth!

  47. Of course lying to get someone into bed isn’t rape. But … why not? Rape is currently understood to mean sex without a victim’s consent and . . .

    Hmm. Perhaps lay persons understand it that way, but I’m pretty sure you’re mistaken if you think that’s how it’s defined legally. I’m unaware of any U.S. rape statute with a consent element; they all focus on force or special aggravated conditions. They intentionally ignore consent, largely for the reasons you talk about.

    See, e.g., the Model Penal Code definition here (pg 54) — http://wps.prenhall.com/wps/me…..l_sec2.pdf

    (1) Rape. A male who has sexual intercourse with a female not his wife is guilty
    of rape if:
    (a) he compels her to submit by force or by threat of imminent death, serious
    bodily injury, extreme pain or kidnaping, to be inflicted on anyone; or
    (b) he has substantially impaired her power to appraise or control her conduct
    by administering or employing without her knowledge drugs, intoxicants or
    other means for the purpose of preventing resistance; or
    (c) the female is unconscious; or
    (d) the female is less than 10 years old.

  48. I hate these lame-ass click bait articles…

  49. I’ve been lurking for a while and I’ve seen a lot of comments figured I’d add this reality bomb. There is an already existing situation in which rape by deception exists and screws many a man over: The deceit by age. If the younger girl lies and states that she is 18 but is not and an older male has intercourse with her, he is still liable for statutory rape (since consent could not be legally given by the minor at any point even if she committed fraud). I believe deceit be age should also be discussed in trying to pin down the legal discussion of what constitutes rape or not.

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