Harmfulness and Wrongfulness in Sex-by-Deception

AbstractIn Criminalizing Sex, Stuart Green wisely eschews any attempt to fully analyse the problem of ‘sex-by-deception’ in a single chapter, instead offering a ‘basic framework’ for determining whether an expansion of the law of ‘rape by deceit’ might be justified. In this article, I offer a revision to that framework. Green begins from an account of rape centred on the right to (negative) sexual autonomy and seeks to reject an expansionist account under which any deceptions and mistakes could vitiate consent to sexual activity. Sharing these starting points, I argue, pace Green, that variations in the harmfulness and wrongfulness of different deceptions cannot ground content-based restrictions on consent-vitiating deceptions. I argue that whilst different kinds of deceptive practices might wrong V to a greater or lesser extent, these variations lead to content-neutral, form-based restrictions on consent-vitiating deceptions. Moreover, whilst variations in the harms of D’s conduct are unlikely to ground a coherent set of content-sensitive restrictions on consent-vitiating deceptions, the harms of criminalisation differ depending on the content of the deception in question and this might lead to content-based restrictions on liability. However, an analysis of the variable costs of criminalisation is not obviously connected to the moral concept of consent-validity. Accordingly, whilst I suspect that both form and content-based restrictions on consent-vitiating deceptions are warranted in this area, the justification for the latter is unlikely to lie within an analysis of consent-validity itself, or the varied harmfulness and wrongfulness of D’s own conduct.