Going against the Tide: Green’s Criminalizing Sex on Rape-by-Deception

Abstract

Stuart Green’s book examines numerous important issues about sexual offenses and offers thought-provoking ideas regarding many of them.1 Here, I focus on one that is of particular interest to me and stands at the heart of the disagreement about consent to sexual relations: rape-by-deception (see Chapter 6, “Rape by Deceit”). Green’s approach to this topic is both courageous and innovative. He begins by arguing against the current expansionist trend in jurisprudence that favors criminalizing more and more cases of deception in which the deceiver knew that the victim would not have consented, but for their deception. Green is particularly concerned about the wholesale expansion of rape-by-deception that would result from using the ‘but for’ test to determine whether consent was vitiated by the deception, and he offers two arguments to support his position (one about the difficulties of proof and the other about over-criminalization). Instead of wholesale expansion, Green suggests conceptualizing deception as a scalar concept, thereby determining the degree of deception according to its content. Deceiving the victim by impersonating their partner, for example, is located at the high end of the scale, while deceiving them about the deceiver’s level of income is located at the low end. Such a scalar approach would allow society to set a threshold below which deception is not criminalized.