Published online by Cambridge University Press: 20 February 2015
In most Common-Law jurisdictions, deceptive sexual relations are criminalized with the same offence that is used to criminalize coercive sexual relations. This trend is strongly supported by feminist scholars like Susan Estrich, who regard deceptive sexual relations as being as wrongful as coercive. Others conflate coercion and deception, going as far to consider deception to be a form of coercion. Against this trend, the present paper argues firstly that deceptive sexual relations are analytically distinct from both coercive and consensual: secondly that, to the extent that cases of deception should be criminalized, this should be done by using an offence distinct from, and less grave than, the offence applicable to coercive sexual relations. To support the latter conclusion this paper suggests a novel argument for why coercive sexual relations are more wrongful than deceptive. The coercer's conduct is more wrongful because it involves typical wrongmaking features that deception lacks: the coercer cruelly proceeds with the coercion while faced with the victim’s suffering and they dismissively disregard negative reactive attitudes such as resentment and anger that the victim forms and expresses toward them. It is then argued that this difference in wrongfulness serves as a reason for criminalizing coercion and deception in separate offences, the former graver than the latter.
I am deeply grateful to Ariel Porat who assisted me greatly during all stages of this project and from whom I have learnt a lot. I am also grateful to Antje du Bois-Pedain, Glenn Cohen, Hanoch Dagan, Tom Dougherty, Stuart Green, Aeyal Gross, Shay Lavie, Guy Sela and Victor Tadros for their constructive and helpful comments. I am indebted to Maya Ben-Meir, Michal Danieli, Yoni Hantis, Guy Rubinstein, Orel Shriki and Elazar Weiss for their excellent research assistance. The research leading to these results has received funding from the European Community’s Seventh Framework Programme (FP7/2007-2013) under grant agreement n° 299653. I am also grateful to the Max Planck Institute for Foreign and International Criminal Law in Freiburg i. Br., Germany, and, in particular, to its Director, Prof. Dr. Dr. h.c.mult. Ulrich Sieber, for the remarkable assistance and hospitality I received.
1. Online: WikiLeaks http://www.wikileaks.org. For a detailed description of the Wikileaks affair, see Yochai Benkler, “A Free Irresponsible Press: Wikileaks and the Battle over the Soul of the Networked Fourth Estate” (2011) 46 Harv CR-CLL Rev 311.
2. Sweden, The judicial authority of v Assange  EW Misc 5 (MC); Assange v Swedish Prosecution Authority  EWHC 2849 (Admin); Assange v The Swedish Prosecution Authority (Rev 1)  UKSC 22. Assange’s supporters claim that these charges serve as a mere excuse to bring him back to Sweden in order then to extradite him to the United States where he is sought for his Wikileaks-related activities. See, for example, Katrin Axelsson & Lisa Longstaff, “We are Women Against Rape but we do not want Julian Assange extradited” The Guardian (23 August 2012), online: The Guardian http://www.theguardian.com/commentisfree/2012/aug/23/women-against-rape-julian-assange; Dana Kennedy, “‘Sex by Surprise’ at Heart of Assange Criminal Probe” AOL News (3 December 2010), online: AOL http://news.aol.ca/2010/12/03/sex-by-surprise-at-heart-of-assange-criminal-probe/.
3. Sweden, The judicial authority of v Assange  EW Misc 5 (MC) at 21. A similar statement appears as an aggravating circumstance of rape of the second alleged victim, who was asleep.
4. Assange v Swedish Prosecution Authority  EWHC 2849 (Admin) at paras 87-90. For scholarly discussion of the issue of deception following Assange, see, for example, Carmen M Cusack, “Consensual Insemination: An Analysis of Social Deviance within Gender, Family, or the Home” (2011) 2 J L & Soc Deviance 158 at 181-88.
5. Sexual Offences Act 2003 (UK), c 42, s 1.1.
6. Ibid at s 3.1.
7. The German Criminal Code StGB, c 13, s 177, which criminalizes rape, is limited to coercion (nötigt); “abuse of persons who are incapable of resistance” (ibid at s 179) is limited to mental or physical incompetence; and in other sexual offences, deception appears only in the offence of human-trafficking for the purpose of sexual exploitation (ibid at c 13, s 181(1)). See also Thomas Fischer, Strafgesetzbuch und Nebengesetze, (Munich: Verlag C.H. Beck, 2008) at 1158. Interestingly, Germany used to have a sexual offence criminalizing deceiving a woman into believing that the intercourse was within marriage (The German Criminal Code, 1953, s 179). However, it seems that only one person was ever convicted of this offence (Oberlandesgericht Koblenz, NJW 1966, 1524-1525), and it was abolished in 1969 due to practical irrelevance (Germany (West). Grosse Strafrechtskommission, Niederschriften über die Sitzungen der Großen Strafrechtskommission: 76. bis 90. Sitzung. Besonderer Teil, Volume 8 (Bad Feilnbach: Schmidt Periodicals, 1991) at 184-85).
8. Deception is criminalized only when used in the context of trafficking (Spanish Criminal Code, tit VII BIS, s 177 bis), prostitution (ibid at tit VIII, c V, s 188), or when the victim is between 13 and 16 (ibid at c II, s 182).
9. Italian Criminal Code, part 2, s 609.
10. For a general description regarding England and the United States, see Jed Rubenfeld, “The Riddle of Rape-by-Deception and the Myth of Sexual Autonomy” (2013) 122 Yale LJ 1372 at 1395-98. Specific reference to spousal impersonation exists in at least 40 US jurisdictions (see Russell L Christopher & Kathryn H Christopher, “Adult Impersonation: Rape by Fraud as a Defense to Statutory Rape” (2007) 101:1 Nw U L Rev 75 at 75, 100). Such cases also appear in the Model Penal Code, 1962, c 2, § 213.1(2)(c). For cases in which such impersonators were convicted of rape, see People v Minkowski, 23 Cal Rptr 92 (CA 1962); Pomeroy v State, 94 Ind 96 (Sup Ct 1883); People v Crosswell, 13 Mich 427 (Sup Ct 1865); Story v State, 721 P (2d) 1020 (Wyo Sup Ct 1986). For Australia, see Papadimitropoulos v The Queen, (1957) 98 CLR 249 at 257-59 (HCA).
11. R v Elbekkay,  Crim L Rev 163.
12. R v Crangle, 2010 ONCA 451.
13. R v Cuerrier,  2 SCR 371 at para 3, L’Heureux-Dubé. A similar statement appears at para 105, Cory J (discussing whether failure to disclosure HIV infection vitiates consent).
14. Tenn. Code Ann, 2013, title 39, c 13, part 5, § 503(a)(4).
15. US, HR 1494, An Act Relative to the Crime of Rape by Fraud, 186th Gen. Court, Mass, 2009, s 22B, online: MaLegislature http://malegislature.gov/Bills/186/House/H1494.
16. Israeli Penal Code, 1977, c 10, s 345(a)(2); CrimC (Jer.) 561/08 State of Israel v Sabbar Kashur, CourtDM1996 (123) 1 .
17. Sexual Offences Act 2003 (UK), c 42, s 76(2)(b).
18. Code of Alabama, tit 13A, c 6, article 4, § 65(a)(1).
19. Estrich, Susan, Real Rape: How the Legal System Victimizes Women Who Say No (Cambridge: Harvard University Press, 1987) at 102–03. Estrich holds that if a woman “submits only in response to lies […] it is a serious offence that should be called ‘rape’” at 103.
20. For example, when discussing deception and violence, Bok asserts that “[b]oth can coerce people into acting against their will”, Bok, Sissela, Lying: Moral Choice in Public and Private Life (New York: Vintage Books, 1989) at 18.
21. Larson, for example, holds that “[c]oercion can take many forms. Free choice may be thwarted […] more subtly by creation of false belief through deception”, Jane E Larson, ““Women Understand So Little, They Call My Good Nature ‘Deceipt’”: A Feminist Rethinking of Seduction” (1993) 93:2 Colum L Rev 374 at 414.
22. This paper does not address which means of deception ought to be criminalized (if any), which types of information constitute misrepresentation, whether deception is possible only by action or also by omission, whether the deception is examined with respect to the actual complainant or a reasonable person (and similarly with respect to the perpetrator) and so on. Rather, this paper focuses on the question of how deceptive sexual relations ought to be criminalized.
23. This paper refers to a “victim” (as opposed to a “woman”) in order to maintain the generality of the discussion. This wording does not deny that there are distinct characteristics stemming from the victim’s gender and/or that a comprehensive understanding and analysis of sexual offences requires accounting for these characteristics. However, these characteristics, important as they may be, are irrelevant to the argument presented in this paper.
24. The issue of consent obtained by deception arises in a number of legal fields, such as contract and tort law. This paper does not address consent in these fields because there might be a substantial difference in the importance ascribed in these fields to considerations of wrongfulness, especially in relation to other principles and objectives which guide those fields.
25. After critically examining the role of conceptual analysis in the discussion of consent to sexual relations, Wertheimer concludes that “[n]o analysis of the meaning of consent will enable us to say whether A’s conduct should be illegal”. Wertheimer, Alan, Consent to Sexual Relations (Cambridge: Cambridge University Press, 2003) at 122.
26. Wertheimer discusses in detail the relation between consent and competence, ibid at 215-57.
27. The above distinction should not be confused with the distinction between general and specific intent, used mainly in the context of intoxication (see R v George,  SCR 871 at 877 and DPP v Majewski,  2 WLR 623 at 478, critically discussed in Tim Quigley, “Specific and General Nonsense” (1987) 11 Dal LJ 75).
28. Dougherty captures this difficulty by noting that consent is both restrictive and extensive; while it is limited to certain courses of actions but not others, it nevertheless permits several courses of action. See Tom Dougherty, “Sex, Lies, and Consent” (2013) 123:4 Ethics 717 at 735.
29. People v John Z, 60 P (3d) 183 (Cal Sup Ct 2003), and the comment by Matthew R Lyon, “No Means No?: Withdrawal of Consent During Intercourse and the Continuing Evolution of the Definition of Rape” (2004) 95:1 J Crim L & Criminology 277. For “change of heart” more generally, see Amanda O Davis, “Clarifying the Issue of Consent: The Evolution of Post-Penetration Rape Law” (2004) 34:3 Stetson L Rev 729; Lois Pineau, “Date Rape: A Feminist Analysis” (1989) 8:2 Law & Phil 217. This situation should be distinguished from a different scenario in which one person gave their on-going consent in the past and shows no expression of either consent or lack of consent in the present. The question is whether their partner can regard the past consent as valid or must they ascertain consent afresh.
30. Several other factors might have contributed to this outcome, such as that the consent could not be withdrawn without a divorce, that women were considered less credible as witnesses than their husbands, and that they were sometimes treated as property. For an evaluation of the more recent causes of this phenomenon, see Irene Hanson Frieze, “Investigating the Causes and Consequences of Marital Rape” (1983) 8:3 Signs: Journal of Women in Culture and Society 532 at 537-38.
31. In English Law, for example, the first instance of restricting the right of husbands effectively to rape their wives appeared only in 1949. In the United States, by 1985 this sweeping permission was still valid in 40 out of 50 States. More information can be found in Estrich, supra note 19 at 74.
32. Such inferences are sometimes prohibited under contemporary “rape shield” laws, Michelle J Anderson, “From Chastity Requirement to Sexuality License: Sexual Consent and a New Rape Shield Law” (2002) 70:1 Geo Wash L Rev 51 at 80-94.
33. R v A (No 2)  UKHL 25,  1 AC 45 at para 150.
34. Arguments against using such evidence in court can be divided into those showing that it is irrelevant (and hence inadmissible) and those holding that such evidence should be inadmissible even if relevant. Regarding “sexual history evidence” see, for example, Di Birch, “Rethinking Sexual History Evidence: Proposals for Fairer Trials” (2002) Crim L Rev 531; Jennifer Temkin, “Sexual History Evidence – Beware the Backlash” (2003) Crim L Rev 217.
35. Vivian Berger, “Man’s Trial, Woman’s Tribulation: Rape Cases in the Courtroom” (1977) 77:1 Colum L Rev 1; Clifford S Fishman, “Consent, Credibility, and the Constitution: Evidence Relating to a Sex Offense Complainant’s Past Sexual Behavior” (1994) 44 Cath U L Rev 709.
36. Westen suggests a similar distinction, between ‘prescriptive’ and ‘imputed’ consent. See Westen, Peter, The Logic of Consent: The Diversity and Deceptiveness of Consent as a Defense to Criminal Conduct (Burlington: Gower Publishing, 2004) at 4–9.
37. For a detailed discussion of the ontological question of whether consent is a mental state or expression, see Wertheimer, supra note 25 at 144-52. While this paper takes consent to be a mental state (similarly to Larry Alexander, “The Ontology of Consent” (2014) 55:1 Analytical Philosophy 102), it seems likely that the argument made in this paper can be adopted to incorporate views that consider consent to be either expression or a hybrid combination of expression and mental state (such as Wertheimer’s).
38. For example, in R v Sansregret,  1 SCR 570, the complainant, fearing for her safety because of the accused’s threats and violent behaviour, did not express her actual refusal. If the accused was aware (or should have been aware, see infra note 39) of her actual refusal, then he coerced her to engage in sexual relations with him regardless of the lack of expression of refusal. However, if the accused sincerely believed that she consented, the issue is one of mistake.
39. Some jurisdictions, like England, introduced a requirement that such a situation would be excluded from the relevant sexual offence only if the partner’s belief was reasonable (Sexual Offences Act 2003 (UK), c 42, s 1(1)(c), s 75). This approach denies protection to victims who experienced non-consensual sexual relations whenever the mistake made by their partner was reasonable (assuming reasonable people are not totally immune to such misunderstandings). Furthermore, this approach is arguably unfair because criminal liability should not be imposed on people who made sincere mistakes, regardless of what a reasonable person would have done. For these questions, see Douglas N Husak & George C Thomas III, “Rapes without Rapists: Consent and Reasonable Mistake” (2001) 11:1 Philosophical Issues 86; and, more generally, Arthur Ripstein, Equality, Responsibility, and the Law (New York: Cambridge University Press, 1999) at 172-214. A good summary of the various considerations for and against the reasonableness requirement can be found in UK, Law Commission, Consent in Sex Offences: A Report by the Law Commission to the Home Office Sex Offences Review (London: Law Commission 2000) at 64, online: Law Commission http://lawcommission.justice.gov.uk/docs/Consent_in_Sex_Offences.pdf.
40. A more complicated scenario appears in R v McFall,  Crim L Rev 226, in which the defendant was so afraid of being violently coerced that even in the absence of an explicit threat, she decided to pretend that she desired the sexual relations.
41. For England, see Felthouse v Bindley,  EWHC CP J35, 142 ER 1037; for the United States, see McGlone v Lacey, 288 F Supp 662 (Dist Ct S Dak 1968). For Canada, see Schiller v Fisher,  1 SCR 593 at 598.
42. For the United States, see Congrove v Holmes, 308 NE 2d 765 (Ohio Ct Com Pl 1973); for Canada, see Norberg v Wynrib,  2 SCR 226.
43. Counterfactual propositions raise many complex questions as to their logical, metaphysical and epistemic nature (see, for example, David Lewis, Counterfactuals, 2nd ed (Oxford: Blackwell, 2001)). This paper assumes that it is possible to determine the truth of at least some counterfactual propositions, since without this assumption many legal tests would become impossible to implement (for example, compensation for a victim of negligence is made based on what would have happened if the tortfeasor had not acted negligently).
44. Counterfactual consent is sometimes called “hypothetical consent”. This paper uses the former term since “hypothetical consent” can also refer to situations in which the agent formed an actual refusal but the law does not recognize that refusal as valid. See also Westen, supra note 36 at 4-7, for a distinction between factual and prescriptive consent.
45. See supra note 22.
46. See Wertheimer, supra note 25.
47. Compare with Smilanski’s definition of regret: “if it were within one’s power, would one choose to prevent the relevant state of affairs?”, Saul Smilanski, “Morally, should we prefer never to have existed?” (2013) 91:4 Australasian Journal of Philosophy 655 at 656-57.
48. Notably, counterfactual refusal is constituted not only when the agent would not have consented had they known the truth about the content of the misrepresentations themselves. Counterfactual refusal is also constituted when the agent would have consented had the perpetrator been honest with them about the content of these representations, but would nevertheless not have consented had they known that the perpetrator deceived them, just because the perpetrator was not honest about these representations.
49. While counterfactual refusal is the central case of deception, one might wonder whether counterfactual absence of consent should also be considered deception. This paper focuses on the central cases of deception because its two main tenets, that deception is both different from and less grave than coercion, hold however counterfactual absence of consent is classified.
50. Some cases combine elements of both coercion and deception; for instance, when the perpetrator had forced the victim to engage in intercourse at gunpoint, but used a plastic gun instead of a real one, without the victim’s noticing. In such cases the perpetrator deceives the victim about the efficacy of the means of coercion the perpetrator uses. This issue is discussed below, see text accompanying infra note 76.
51. It can be argued that this problematic outcome is theoretical because the prosecution only indicts when the victim files a complaint, and in such cases the victim is unlikely to complain in the first place. This response conflates substantive (What are the elements of the offence?) and procedural (When should the prosecution indict a suspect?) questions.
52. For an elaborated argument why deceptive sexual relations are seriously wrong, see Dougherty, supra note 28.
53. This claim is consistent with regarding actual refusal as a state of mind rather than expression (supra note 37), because the claim that actual refusal is likely to be accompanied by expressions does not imply that actual refusal is constituted by these expressions. Cases in which actual refusal is not accompanied by expressions of refusal are discussed in the text accompanying infra note 62. Regarding incapacitated victims (like in ‘rape drug’ cases) who either do not suffer or are unable to express their suffering, see text accompanying infra note 67.
54. John Kekes, “Cruelty and Liberalism” (1996) 106:4 Ethics 834 at 838.
55. A few days after visiting a slaughterhouse, Tolstoy writes: “man suppresses in himself, unnecessarily, the highest spiritual capacity—that of sympathy and pity toward living creatures like himself—and by violating his own feelings becomes cruel”, Leo Tolstoy, “The First Step” in Essays and Letters (New York: 1909) at 82-91.
56. Kekes, supra note 54.
57. Some deceivers might take particular pleasure from revealing their deception to the victim after the fact and seeing their victim suffer. Such actions are not part of the deception as such but additional wrongful conduct which is indeed cruel.
58. The difference between the harm each causes and the difficulty in focusing only on harm are discussed in C.2.
59. Strawson argues that this great significance diminishes the importance of the metaphysical question of the relationship between freedom and determinism, and renders it merely theoretical. This paper focuses on the reactive attitudes and the role they play in interpersonal relations without endorsing Strawson’s approach to the problem of free will. See Strawson, PF, “Freedom and Resentment” in Freedom and Resentment and Other Essays, (London: Methuen, 1974) at 1–25, and the large number of works citing this paper, e.g., McKenna, Michael & Russell, Paul, eds, Free Will and Reactive Attitudes: Perspectives on P.F. Strawson’s “Freedom and Resentment” (Farnham: Ashgate, 2008).
60. For victims who lack this capacity, either temporarily or permanently, see text accompanying infra note 67.
61. While these wrongmaking features explain why one form of non-consensual sexual relations (coercive) is more wrongful than another form of non-consensual sexual relations (deceptive), they do not provide a full explanation of what makes sexual relations coercive or wrongful to begin with. This is because the wrongfulness of coercive sexual relations consists not only of these features but also of the victim’s lack of consent. Accordingly, even when sexual relations include these wrongmaking features, they are neither coercive nor as wrongful as coercive if they are consensual. For example, a person who consents to engage in sexual relations with a partner who openly states an interest only in sexual relations, might still suffer and express negative reactive attitudes toward the partner, yet this does not necessarily render the partner’s conduct coercive or as wrongful as coercive sexual relations.
62. If the coercer was unaware of that refusal, the issue is one of mistake, see text accompanying supra note 38.
63. See text accompanying supra note 40.
64. Luigi Illica & Giuseppe Giacosa (English version by William Beatty-Kingston), “Tosca” (G Ricordi & Co, 1899) at 41-42.
65. Susan Estrich, “Rape” (1986) 95 Yale LJ 1087 at 1105-21; see Estrich, supra note 19 at 29-32.
66. This is unlike Rubenfeld’s approach, which boils down to reintroducing the force requirement into the offence of rape, see Rubenfeld, supra note 10 at 1435-36.
67. See supra note 26.
68. While Dougherty compares cases of deception and comatose, he makes this comparison merely to show that deception too is seriously wrong, see Dougherty, supra note 28 at 724-27.
69. “A’s deception uses B’s will against herself, making her an unwitting agent in the violation of her own rights”, Wertheimer, supra note 25 at 194 [emphasis in original].
70. Regarding using the victim only as means, see text accompanying infra note 88.
71. Patricia A Frazier, “Victim attributions and post-rape trauma” (1990) 59:2 Journal of Personality and Social Psychology 298; Linda S Williams, “The Classic Rape: When Do Victims Report?” (1984) 31:4 Social Problems 459.
72. For a critical discussion of the Common Law distinction between fraud in the factum and fraud in the inducement, see Wertheimer, supra note 25 at 206-09.
73. See, for example, R v Harms,  1 WWR 12, 81 CCC4, 2 DLR 61.
74. Notably, if the deception includes not only misrepresenting the sexual relations as medical treatment but also misrepresenting the perpetrator as belonging to the medical profession, the above point presupposes the plausible assumption that an imposter owes the victim the duties implied by the role they assume (for why should an imposter be allowed to benefit from their own deception and be exempted from respecting the rights that the patient would have possessed had the perpetrator been a real doctor?).
75. The nature of sexual intercourse as a special interpersonal interaction (a nature that, for example, cautions against state intervention) drew substantial criticism from feminist theorists. See, for example, MacKinnon, Catherine, Toward a Feminist Theory of the State (Cambridge, Harvard University Press, 1989) at ch 7; Dworkin, Andrea, Intercourse (New York: Basic Books, 1987).
76. For a description of the plastic gun case, see supra note 50.
77. On the importance of specificity to the definition of offences, see Amit Pundik, “Should Criminals be Convicted of Unspecific Offences? On Probability Theory, Efficiency, and Cognitive Psychology” [forthcoming in Criminal Law and Philosophy]. For classification of offences more generally, see Stuart P Green, “Prototype Theory and the Classification of Offenses in a Revised Model Penal Code: A General Approach to the Special Part” (2000) 4:1 Buff Crim L Rev 301; Husak, Douglas N, Overcriminalization: the Limits of the Criminal Law (New York: Oxford University Press, 2008).
78. Scanlon, TM, Moral Dimensions: Permissibility, Meaning, Blame (Cambridge: Harvard University Press, 2008) at 52. While this term is borrowed from Scanlon, this paper is not committed to Scanlon’s own interpretation of this term or to the relation that he draws between this term and other concepts.
79. Ibid at 53. Gardner also highlights the significance of the meaning of an action. See Gardner, John, “The Wrongness of Rape” in Offences and Defences: Selected Essays in the Philosophy of Criminal Law (Oxford: Oxford University Press, 2007) 1 at 24.
80. “The victim” refers not only to the direct victim but also to derivative victims (like the direct victim’s family and friends).
81. For a similar distinction between well-being and rights-based interests and its relation to experience, see Wertheimer, supra note 25 at 93 & 94-95 respectively. For criticism of attempts to base the wrongfulness of rape on the non-experiential harm to the victim’s right over her body, see Gardner, supra note 79 at 8-14.
82. In addressing the connection between experiential harm and “rights violations”, Wertheimer claims that “the latter are largely, if not entirely, parasitic on the former”. Wertheimer, supra note 25 at 100.
83. For an example of empirical research assessing the harm to rape victims without separating between coercion and deception, see Dean G Kilpatrick et al, “The Psychological Impact of Crime: A Study of Randomly Surveyed Crime Victims”, online: (1987) National Institute of Justice https://www.ncjrs.gov/pdffiles1/Digitization/107740NCJRS.pdf. For research which distinguishes between violent and non-violent rape (but not between coercion and deception), see Patricia A Resick, “The Psychological Impact of Rape” (1998) 8 Journal of Interpersonal Violence 223.
84. Stuart P Green & Matthew B Kugler, “Community Perceptions of Theft Seriousness: A Challenge to Model Penal Code and English Theft Act Consolidation” (2010) 7:3 J of Empirical Legal Stud 511.
85. This harm in turn adds another layer of significance to the meaning of coercion. While the meaning of an action is not exhausted by its likely effects, this additional harm further changes the meaning of coercion and makes it worse than it would have been without it.
86. Gardner, supra note 79 at 5.
87. Wertheimer defends his experiential harm approach from such examples by suggesting that “the wrongfulness of A’s action is principally a function of […] the expected harm of his act, and not the actual harm that ensued”, supra note 25 at 102. For a critical examination of Wertheimer’s response, see Dougherty, supra note 28 at 726-27.
88. In discussing deceptive sexual relations Wertheimer admits that “[H]ere I have a problem” and concedes that “it really does not matter” whether an action is wrong because of its expected harm or because of the non-experiential harm it causes, Wertheimer, supra note 25 at 202 and 203 respectively. For a similar criticism of Wertheimer, see Dougherty, supra note 28 at 725-27.
89. Herman, Barbara, The Practice of Moral Judgment (Cambridge: Harvard University Press, 1993) at 203–07.
90. “That a rapist objectifies his victim by treating her as a mere repository of use-value is what is basically wrong with rape”, Gardner, supra note 79 at 15. According to this view both the coercer and the deceiver objectify their victim because they both fail to respect their non-use value.
91. Gardner argues that “the main importance of the “objectification” argument lies in the way that it begins to differentiate rape […] from other paradigms of criminal wrong, including paradigms of non-sexual criminal violence”, ibid at 16, yet it is difficult to see how non-sexual criminal violence does not objectify the victim, because it too fails to respect the victim’s non-use value.
92. That an act is wrongful does not imply that the agent who committed the act is culpable and that an agent is culpable does not imply that they committed a wrongful act. There might be reasons for condemning the act while exculpating the agent (like insanity) and there might be reasons for condemning the agent without condemning the act (as in the case of impossible attempts). For more on these distinctions see Heidi M Hurd, “Justification and Excuse, Wrongdoing and Culpability” (1999) 74 Notre Dame L Rev 1551 at 1558-59; Michael S Moore, “Prima Facie Moral Culpability” (1996) 76 BU L Rev 319 at 320-21.
93. “Hardly any part of penal law is more definitely settled than that motive is irrelevant”, Jerome Hall, General Principles of Criminal Law, 2nd ed (Indianapolis: Bobbs-Merrill, 1960) at 88. “It has been uniformly accepted in Anglo-American jurisprudence that motive is neither an element of a crime, nor a defense to its existence”, Theodore Sachs, “Criminal Law: Humanitarian Motive As a Defense To Homicide – State v. Sander, (N.H. 1950)” (1950) 48:8 Mich L Rev 1199. For critical examination of the criminal law’s approach, see Douglas N Husak, “Motive and Criminal Liability” (1989) 8:1 Criminal Justice Ethics 3.
94. Notably, one outcome of the criminal law’s disregard of the perpetrator’s motives is that some coercers might be punished more severely than deceivers not because they are more culpable but because they lack the sophistication needed to obtain the victim’s consent by deception. This issue is part of a general problem in criminal law and seems particularly relevant to white collar offences. While the issue is troubling, providing a general solution to it lies outside the scope of this paper.
95. This is not a remote possibility, as criminological research demonstrates that many rapists act out of a desire to feel power and control, or are motivated by anger. See AN Gorth, AW Burgess & LL Holmstrom, “Rape: Power, Anger, and Sexuality” (1977) 134:11 American Journal of Psychiatry 1239. For a critical review of this literature, see Wertheimer, supra note 31 at 70-80.
96. For mistakes, see text accompanying supra notes 39 and 62.
97. As Kekes notes, “[t]o say that an action is cruel is thus to say that it is the kind of action that would be performed by a cruel agent”, Kekes, supra note 54 at 837.
98. See section C.1.
99. The question of proper labelling might be dismissed as formalistic and non-practical since the only thing that matters is the term of imprisonment inflicted on each perpetrator, rather than how the offence is construed or named. Such a stance neglects the general significance of proper labelling in criminal law. Convicting the accused of ‘murder’ and labelling him a ‘murderer’ forms a crucial part of the criminal sanction, which includes not only the term of imprisonment, but also the condemnation attached to the offender. That labelling and stigma are of practical significance is not only intuitive but also in accordance with empirical research; see, for example, Franklin Zimring & Gordon Hawkins, “The Legal Threat as an Instrument of Social Change” (1971) 27:2 Journal of Social Issues 33; Eric Rasmusen, “Stigma and Self-fulfilling Expectations of Criminality” (1996) 39:2 JL & Econ 519.
100. See, for example, Duff, RA, Punishment, Communication and Community (Oxford: Oxford University Press, 2001); Feinberg, Joel, “The Expressive Function of Punishment” in Doing and Deserving: Essays in the Theory of Responsibility (Princeton: Princeton University Press, 1970) 95; and Braithwaite, John & Pettit, Philip, Not Just Deserts: A Republican Theory of Criminal Justice (Oxford: Clarendon Press, 1990) at 25–53.
101. For example, Hampton seeks to justify punishment as a way of teaching the wrongdoer that the action is wrong; see Jean Hampton, “The Moral Education Theory of Punishment” (1984) 13:3 Phil & Pub Aff 208 at 212, 225. In order to serve this educational purpose successfully, punishment should be attached to a prohibited action which is accurately defined.
102. See, for example, Morris, Herbert, “Persons and Punishment” in On Guilt and Innocence (Berkeley: University of California Press, 1976) 31 at 31–59; Lewis, CS, “The Humanitarian Theory of Punishment” in Hooper, Walter, ed, First and Second Things: Essays on Theology and Ethics (Glasgow: Collins Fount, 1985); Michael Moore, “Justifying Retributivism” (1993) 27 Isr LR 15.
103. See section C.3 above.
104. For a survey of the empirical research on the economic and social implications of the criminal stigma, see Rasmusen, supra note 99.
105. For a similar position, see the Irish Law Reform Commission report, “Homicide: Murder and Involuntary Manslaughter” (2008) at 6, online: http://www.lawreform.ie/_fileupload/Reports/rMurderandInvoluntaryMS.pdf: “The Commission believes that differentiating between homicide offences […] underlines the differing stigma attaching to each category of killing. If murder ceased to be a distinct offence, the criminal law would fail to convey the degree of stigma and revulsion society attaches to the most heinous killings.”
106. It could be argued that other considerations affect the deterrence analysis. For example, if deceptive sexual relations are harder to deter because of enforcement difficulties, then the sanction for it should be (at least) as severe as that for coercive sexual relations. While there could be other relevant deterrence considerations, the point of this paper is that the difference in wrongfulness generates a salient consideration for deterrence theories as well.
107. For a description of the way conventional perceptions of rape by deception are reflected in English and US judgments, see Rubenfeld, supra note 10 at 1395-98.
108. In a recent paper Harel and Porat argue that in some cases the accused should be convicted of an unspecific offence if there is evidence that the accused committed at least one of several offences, Alon Harel & Ariel Porat, “Aggregating Probabilities Across Cases: Criminal Responsibility for Unspecific Offences” (2009) 94 Minn L Rev 261. This seems to challenge this paper’s position from the other direction, because it suggests that the important category is ‘criminal’ rather than ‘rapist’, ‘robber’, etc. For a detailed criticism of their proposal, see Pundik, supra note 77.
109. Temkin acknowledges these changes but nevertheless regards them as mere appearances, Jennifer Temkin, “Rape and Criminal Justice at the Millennium” in Donald Nicolson & Lois Bibbings, eds, Feminist Perspectives on Criminal Law (London, UK: Cavendish Press, 2000) 183.
110. Sexual Offences Act 2003 (UK), c 42, s 74.
111. Canada Criminal Code, RSC 1985, c C-46, ss 271-73.
112. Ibid at s 273.1.
113. For example, ibid at s 153.1(2) defines “consent” for the purpose of sexual offences against disabled persons and ibid at s 150.1 defines a variety of exceptions to the rule that consent is no defence in sexual offences against minors.
114. See, for example, Sexual Offence of First Degree in Alaska (Alaska Stat. § 11.41.410 (2014)); Victoria, Australia (Crimes Act 1958 (Vic), s 38), South Africa (Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007).
115. See text and examples accompanying supra note 10.
116. Canada Criminal Code, RSC 1985, c C-46, ss 271-73.
117. For example, “Aggravated sexual assault” vs. “Sexual assault”, ibid, s 273 and s 271 respectively.
118. This is particularly evident when the accused failed to disclose having HIV, see, for example, R v Cuerrier,  2 SCR 371. In such cases it is the “danger to the victim’s life” which renders these sexual relations more wrongful than deceptive sexual relations which did not put the victim’s life at risk.
119. This distinction should not be confused with the distinction between accomplices and accessories.