CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Monday, October 8, 2018

Bergelson on Rape by Fraud

Vera Bergelson (Rutgers Law School - Newark) has posted Chapter Eight: Sex, Lies, and Law: Rethinking Rape-by-Fraud (in: Consent and Control: Legal Perspectives on State Power (Cambridge Scholars Publishing) (2016)) on SSRN. Here is the abstract:

Recent cases in the US and abroad (UK and Israel in particular) have brought to the academic and public attention the question of whether criminal law should punish an individual who has obtained his partner’s sexual consent by fraudulent statements or actions.

Traditionally, sexual consent has been held invalid in cases of fraud in the factum. In cases of fraud in the inducement, on the other hand, consent has not been deemed vitiated. This distinction has been criticized: after all, if A would not have consented to sex with B but for B’s deception, why does it matter what kind of deception it was?

In my paper, I explore the arguments for and against criminalization of sexual conduct in cases when consent has been obtained by fraud in the inducement. I conclude that, in those cases in which B’s deception did not significantly diminish A’s capacity for rational decision-making, fraud in the inducement should not eliminate otherwise valid consent. A’s motive for entering into a morally neutral transaction (sexual encounter) is irrelevant. Moreover, A has no right that A’s potential sexual partners forbear from lying or exaggerating or otherwise misrepresenting facts. Finally, interpersonal lies are inevitable and often perform important social functions.

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