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[Auto-generated transcript. Edits may have been applied for clarity.]
Rachel Tolley, thanks very much for this. Thank you Kate. So I'll get straight into it.

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The topic we're discussing today is fraudulently obtained sex, meaning the pivotal question being in what conditions does a person's deception,

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which induces somebody else to engage in some sexual activity with them, actually negate that person's consent to the sexual activity?

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So a nice, easy question for everybody. Not complicated at all.

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I mean, obviously we both know deception is just one of the ways that consent a sexual activity can get negated, recognised in law.

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And we would recognise it just in moral discussions as well, the others being incapacity and coercion.

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But I think you would agree with me that certainly in the academic literature it's probably the most contested area of sexual consent.

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Yeah, and some pretty diverging views coming from scholars who otherwise might kind of think quite similarly about lots of things.

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So it's interesting. Yeah. And a lot of development in the law in the past, I don't know.

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Would you say like ten, ten, 20 years suddenly quite a lot going on.

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So we'll get into all that like loads to talk about.

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But I wanted to start with a case which I think is a particularly interesting and kind of difficult and sensitive case.

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And I know it's a case that you've thought a lot about and written about, which is the case of Justine McNally.

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Yes. So perhaps I'll hand it to you as the expert to introduce the case.

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Thanks, Kate. You know, McNally is such an important case in this area.

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Um, and it's incredibly complicated to talk about, because if I were to briefly describe the facts of McNally,

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I would by necessity, be summarising and characterising quite a specific series of facts.

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And, of course, in that process of summarising and characterisation, there's a layer of interpretation there,

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and how you interpret the specific facts of McNally goes right to the heart of the controversies in that case.

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So so it's not only, you know, you've thrown me a hard one to start with.

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Sure. Um, so, so to try and engage in that process with as minimal interpretation as possible at the outset.

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And let me say this, um, Justine McNally, as she was known at the time of the court hearings,

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um, engaged in an online relationship with the complainant in that case,

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um, whose name we don't know because complainants in sexual offences cases, as your listeners might might know, remain anonymous.

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Um, so I'll just refer to her as the complainant for for ease.

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Um, so Justine McNally and the complainant were in an online relationship for a number of years,

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and they met when they were quite young and they waited until the complainant was 16 before they ever met in person.

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And I think that's quite an important fact,

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because I think it shows that there was some baseline of kind of respect and consideration within that relationship.

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Um, that's at least what that fact sort of gives me an option.

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Birth assigned female. Yes. Yes. But presenting. Well so when they identify.

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Yes. So when they met online, the complainant knew McNally is a boy called Scott.

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Right. And when they met in person, Scott turned up wearing as the court sort of puts it, boys clothes.

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Um, and they engaged in various forms of sexual activity.

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Um, essentially, um, McNally performed oral sex on the complainant and penetrated her digitally.

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That's quite graphic for the first five minutes of the conversation, but the precision in these facts matter,

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I think, and they matter for reasons that I'm sure will come onto in the course of our discussion.

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So so, you know, on a couple of visits, um, McNally travelled down from Scotland to London.

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This kind of activity took place. And then, as the court describes it at some point in, in, you know, a few years.

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A few years into their relationship, there's some kind of confrontational discussion between McNally and the complainants mother.

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And as the court describes it, the complainants mother says to McNally something along the lines of you're really a girl, aren't you?

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And McNally sort of the way that the court kind of frames this in their language.

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It sort of framed almost like an admission of the truth.

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Yes, I am really a girl, but there's references at the time to McNally quote, wanting a sex change or expressing some desire to undergo a sex change.

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And that's the language used in the court's decision, not not mine.

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Um, but that fact is kind of brushed aside in the kind of legal afterlife of that interaction.

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And ultimately, McNally pleads guilty to and is convicted of. I think it was six counts of, of sexual assault, a serious sexual offence,

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serious sexual offences, sexual assault by penetration, very serious sexual offences.

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And it's very difficult to um, uh, to appeal against a criminal conviction once you've pleaded guilty.

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But nonetheless, an appeal was brought essentially on the basis that the facts as described don't amount to a criminal offence because the deception,

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as the court understood it in that case, went to the complainants gender.

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And that isn't relevant to legal consent validity. Well, that was the argument.

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That was the argument that was made on appeal. Yes. That was the basis upon which the appeal was put.

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The Court of Appeal was having none of it, um, and held that deception as to gender can vitiate consent.

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Um, now that this case is interesting for a number of reasons, and when we think about cases,

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I don't know how you think about them and how you teach your students to think about cases,

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but I'd like to think of them as sort of there are two different realities or two different lives.

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A case has one is what actually happened to these people? What were the facts, what went on here, and how has this impacted the people involved?

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And the other life of the case is the life we see and deal with more often, right?

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What is the point of law that it establishes and what is? Yeah. What's the scope and impact of this ruling on an ongoing basis?

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And I think we need to be careful, particularly with a case like McNally, to keep those two separate.

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So on that, thinking about the facts, the facts as assumed by the court, including on appeal, without the complainant,

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really believed that the person she was engaging with in sexual activity was a birth assigned male.

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Am I right in thinking that maybe there are there are grounds to well, that one has to slightly suspend disbelief about that set of facts,

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which again, is another question separate from the point of law that we're going to discuss.

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Yeah, yeah, I think it's difficult for, you know, having only read the Court of Appeal decision in that case,

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and even if, even if one had read certain other documentation around that case,

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you know, submissions by by parties on appeal,

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I think it would be difficult to form a firm view as to what the complainant in that case really believed or not.

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Um, but I think taking a step back and thinking about these cases systemically, cases involving trans defendants.

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Um, it seems to me plausible that there are cases in which you know what's known and what isn't known, what's half known, what's unknown.

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When is an individual suspending disbelief? When it when does an individual sort of retreat to a position of,

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I didn't know anything about this in the face of friends and family who don't understand or or

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want to put some kind of narrative on top of a relationship that makes them feel uncomfortable.

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I think all of these reactions are very likely in the world in which we live.

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So, you know, I wouldn't feel comfortable making assumptions about that particular interaction.

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But these are generally these are general questions I think of. These are very important to consider.

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And when we then come to the point of law, and my understanding of this case is that just looking at McNally itself before the life of McNally,

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for sure, in in subsequent case law takes on a life of its own.

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This there seems to be something of an ambiguity in the point of law that it upholds.

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You know, what is the precedent? Would you say this case is actually an authority for the proposition that somebody's holding themselves out to

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be a gender which doesn't comport with their birth assigned sex is potentially a consent negating deception.

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Would that be a fair description of the point of law,

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or is even that kind of I think I think very few claims made about legal cases that are remotely controversial or difficult or incontestable,

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but I think that's a legitimate reading of, of the case.

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Um, it's a it is a broader reading of the case than, than that which some might seek to put on it.

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But I think that's fair. And the reason why I think that's a fair reading of of the of the decision is, you know,

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there is plenty of evidence to suggest that at the time of the sexual activity in question,

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you know, the defendant might have understood themselves to have been a trans man.

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Right. Not at the time at which the appeal was heard, for sure.

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Um, but what matters is how did they understand their identity at the time of the sexual interaction?

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So could we zero in on the so-called deceptions then?

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Because of course, it's an important aspect of this ruling that the court is saying there are deceptions about something.

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And then we come to ask, okay, about what?

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Let's say we let's say we just take it as granted for the sake of argument that this person is both the same female,

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but is authentically identifying as a male at that time anyway.

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Then we come to ask, okay, so what was the fraud exactly?

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And if we're saying, well, the fraud was that she was a girl, not a boy.

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Then we can immediately see if people have made these points. Alex Sharp has made these points.

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There's a certain tension there between transgender recognition and we have a Gender Recognition Act,

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which which says transgender status confers genuine status.

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And if we believe gender dysphoria is real, there's a tension right between saying, this is a deception, this is fake.

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And what we want to say about transgender status, which is that's not fake. So, I mean, how do you think about that?

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I think you I think you've identified one of the most troubling aspects, if not the most troubling aspect of the case there.

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Um, you know, my starting point is, is this trans people are real.

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They exist, and their identities are worthy of recognition and respect in life as well as law.

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And I think it's important that we include in that discussion.

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Non-binary people and intersex people, because we often approach.

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I've seen discussions of McNally and this particular legal issue in general approach to a very kind of binary lens.

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Right. We have this this narrative, um, you know, someone's born in the wrong body.

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Um, they feel a lot of distress. They go through various medical procedures and sometimes legal procedures getting a gender recognition certificate.

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And this leads to a sort of resolution of that distress.

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And I think, you know, we need to recognise the limitations of that narrative when we're thinking about these, these cases,

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because that doesn't approximate the lives of all trans people, you know, who, unsurprisingly, aren't a monolithic group.

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Right? No, no identity group is. Um, and so I think that being said, for me,

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if if an ethics of sexual communication and certainly a criminal law of sexual consent

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at any point begins to characterise trans or intersex people is inherently deceptive.

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Something's gone seriously wrong, right? And that's, I think, effectively the result of of this case.

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McNally. Why is that? Well, let's start by breaking down the first assumption that the court makes when they're looking at the facts in McNally.

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They begin by assuming that McNally's made a false representation. That's a term that lawyers like to use,

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but essentially that McNally said something or done something that gives rise to a belief in the complainants mind.

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That is false. But what if we started from a slightly different earlier point in the narrative?

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What if we start by asking what false belief led the complainant to consent in terms when where she says she wouldn't have?

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Had she known the truth? Now, the court characterised that false belief is as McNally is a man, McNally is a boy.

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I think the more accurate way of looking at the false belief in that case is McNally is a cisgender man, not a transgender man.

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Okay. That's the false belief that leads the complainant to consent when she she claims she she wouldn't have done anyway.

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So if you say if you kind of narrow the so-called deception,

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you said the deception was about transgender status or deception was about gender history, right?

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Then we we have maybe an example of a possible deception which which does cohere with recognition of transgender status.

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It's not saying that the holding McNally holding, we can say her because she identifies the girl holding herself out as a boy was fraudulent.

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It's kind of pretending that she was not a birth assigned female was forged.

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Is that the idea? Well, I think I mean, at this stage,

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I think what this reframing allows us to do is to call into question whether or not there's deception involved in this case at all.

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Okay. Um. There's no indication that McNally ever made any claims about their the sex to which the gender they were assigned at birth.

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Um, about, um, their legal gender status.

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Um, really? All you have is. My name is Scott. I'm wearing clothes bought from the men's department.

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Um, and some ambiguous discussions about sexual activity, which the the complainant and the defendant might have engaged in at a future point,

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which involved penetration, but which weren't necessarily indicative of the the defendant sort of having any kinds of physical characteristics.

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Let's put in much of these representations, you could say, are simply consistent with someone's understanding of themselves.

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Absolutely. As being male as, you know, as gendering themselves as male.

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Absolutely. Rather than being a particular deception about gender history.

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Exactly, exactly. So this slightly leads us into the question of non-disclosure versus deceptions,

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because we may be sceptical about in the case of McNally and in other cases like this.

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What is the deception exactly? How are we identifying the deception in a way that's consistent with transgender status?

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Non-Disclosure is maybe slightly easier to identify.

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Is there a difference in the way the law would treat a simple failure to disclose this sort of information,

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and what we might think of as an active deception? So when McNally was decided in 2013, I told my students what the court have done in this case,

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thinking about the legal afterlives of cases as precedents. The court has drawn a distinction between deceptions and non disclosures.

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The court holds that non disclosures are not capable of vitiated consent but that active deceptions are.

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And so that characterisation of McNally's conduct as deceptive is really important within the judgement of McNally as you know,

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because that is the first step on a ladder towards upholding McNally's conviction.

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This isn't a case of non-disclosure. Notwithstanding the analysis I've just laid out for you, it's a case of deception.

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Only some deceptions will Vitiate consent, say the court. The receptionist agenda is capable of initiating consent.

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Um, moving forward ten, ten years, the leading authority in this area is now a case called Lawrence.

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And in Lawrence, the courts seem to row back on that distinction between deception and non-disclosure.

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And they sort of say, well, it doesn't really matter whether there's a deception or a failure to disclose.

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What matters is the kind of content of the deception. And we can talk a little bit more about the implications of some of these later cases in a bit.

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So panning out to the more general development of the law in this area, it has been quite dynamic in recent years that there's a lot going on,

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because for an extremely long time,

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the law really reined in the kinds of deceptions that could potentially negate consent to deceptions of very particular kinds.

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You know, we had these deceptions as to what the law called the nature of the act, where, you know,

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in these cases, fundamentally, the the victim didn't know what they were engaging with was even sex.

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You know, it was even sexual, you know, fake medical procedures, that sort of thing.

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And then the impersonation cases where somebody is, you know, fairly outlandishly.

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But there were cases like this impersonating somebody's husband partner.

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Um, but that was really it for a very, very long time.

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And then kind of all of a sudden we have the law expanding the parameters of what we would call consent,

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initiating deceptions and allowing for things like stuffing, um, yeah.

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Pretending to be using a condom and not using the condom.

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You know, we have the case where someone, um, said they wouldn't ejaculate inside a person and then did not accidentally.

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And that being important, uh, other cases where the law is kind of allowing these these boundaries to expand.

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So there's a lot happening here.

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Um, I wonder kind of what your take is, I suppose, first of all, just on this general pattern, I mean, I think that's right.

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And McNally is the nadir of that in a way.

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So you you have the stealth in cases, you have the withdrawal case you mentioned, and then McNally, the court in McNally,

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once they've identified this distinction between deception and non-disclosure, characterise McNally's conduct problematically as deceptive.

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They they are unwilling to go so far as to say that all deceptions can vitiate consent.

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They want to draw a distinction between the cases you've mentioned and a previous case in which

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the court held that the non-disclosure of HIV status was irrelevant to consent validity.

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So they say, well, that's because that's a non-disclosure case.

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Um, McNally, on the other hand, is more akin to these other cases, the the stealth in case the withdrawal case.

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There are also all these cases. The law continues to want to say the deception is just not the right kind of section.

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You know the old case. Deceptions as to wealth, deceptions about whether the parties are validly married to one another.

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Deceptions about whether one of the defendants married to someone else.

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All of these kinds of deceptions are irrelevant, say the court. So how do they draw this distinction?

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Well, the Court of Appeal in the Infinite Wisdom in McNally say, well, it's just common sense.

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Common sense. You just apply your common sense.

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You take a common sense approach to the evidence relating to choice and the freedom and capacity to make a choice,

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and that will identify the route through the dilemma.

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And I think most people reading that sort of jaw on the floor moment, really, because I have no idea whose common sense where replying,

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um, but it's certainly not mine when you when you see the way in which this is played out in later cases.

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And I think one of the real worries about that approach to drawing the line is the complete lack of certainty involved.

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Um, and so, unsurprisingly, I think we've seen a contraction of the law in response to McNally.

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And now the position is is really very few deceptions will vitiate consent to sexual activity.

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It's a little bit broader than that historical position. Only impersonations of your spouse or sexual partner or fake medical procedures.

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Um, we add to that deceptions which relate to the physical performance of the act,

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which explains the stealth in cases and the withdrawal prior to ejaculation case.

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You mentioned, we would say the law is more amenable when something is about kind of the, the, the mechanics.

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Can we say like the mechanics of, of of an act. The deception goes to that to saying this is something which affects consent.

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Exactly. And then McNally, which remains this kind of hard to explain, hard to rationalise adjunct, um, to that body of sort of recognised as consent.

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Initiating deception. Can I introduce the spy cops scandal at this point?

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I think most people know about this cluster of scandals.

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It was to do with the Metropolitan Police some years ago, a number of them infiltrating activist groups,

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some of these environmental groups under fake identities, pretending to be other activists, other campaigners.

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And they befriended and then formed relationships with other women in these sorry,

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with women in these groups, um, sexual relationships and in some cases, cohabiting relationships,

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when they even father children with these women, all under these aliases and then disappeared out of their lives all of a sudden,

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I mean, it's really despicable, horrendous behaviour.

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And then at some point, the court is having to consider, could that be rape?

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Yeah. Um, through this deception fruit. And the court decided, no, that isn't the kind of deception which really is consent.

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Now, if you think about this in terms of identity, I wonder how we square that with McNally in that in the spy cops case.

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This is an identity deception, which really is quite entirely thoroughgoing, and there's no authenticity about it.

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Right. You know, these men, um, knew entirely who they were.

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They they were faking an entire identity with the complainants.

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Whereas with McNally, what we're seeing is someone who is kind of in her own way, she's she's being sincere about who she is.

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And yet we have the court saying in McNally, this is a deception.

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This is, you know, an identity type deception would be a way of reading it.

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Yeah. And in the spy cops case, these aren't the sorts of deceptions which which amount to full on impersonation, which would negate consent.

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I think that case illustrates nicely the way in which the law, as it currently stands, places a burden of scrutiny and suspicion on trans people.

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That applies to nobody else. Um, according to the courts,

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it's entirely irrelevant the fact that you fabricated your entire identity so that you can not just fabricated your entire identity,

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but particularly with an emphasis on the on the closely held values of the person,

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that you are not only forming a sexual relationship with, but also spying on.

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Yes. So you can spy on her and all of her friends? Yeah.

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Fully exploitative. Exactly. Using that sexual. Sexual relationship.

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Romantic relationship. To get close to this person.

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In order to facilitate that ultimate end goal that you have, which is not sincere, which is not about forming a meaningful relationship.

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At least I think that's a perfectly plausible reading of what's going on in these cases.

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Um, and that's entirely irrelevant to consent validity.

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On the other hand, someone living their life, um, being who they are,

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is treated as some kind of fundamental, awful deception that's been perpetrated on,

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on a sort of an individual which is vulnerable only by virtue of the fact that

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they're cisgender and the person they're in a relationship with as transgender.

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And that is assumed to have some kind of power dynamic of manipulation and control without any supporting evidence.

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And to that effect, whether we think of the spy cops as engaging in full on rape or not,

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you know, that's always that's a further question we could ask to ask.

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But even before we get there, if we just think about the moral quality of these different behaviours, there seems to be a huge discrepancy in the,

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the, the sort of levels of, of manipulation and the existence even of any kind of moral wrongdoing, I think.

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And yet the law seems to come to a very counterintuitive to me at least.

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Um, response in these cases. I wonder if we can completely move away for now.

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Yeah, yeah. I mean, I suppose they'll all be in the back because it's not helping us very much, right?

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We just put that to one side and think about the purely philosophical debate here around consent.

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And there's there's so much written on, on this, so much engagement. Yeah.

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So I'm going to I'm going to simplify terribly and kind of summarise, but broadly speaking,

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very roughly speaking there are kind of two views, two different stances about this, about deception and consent.

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Um, one approach is to say that anything which we might call a deal breaker, something which mattered to the person giving consent,

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which clearly mattered to them, um, on which their consent was conditional, which they are deceived about, negates their consent.

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And it doesn't matter what it is, as long as it was significant enough to them to induce them to the sexual activity.

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And it doesn't matter whether this was a deception or a non-disclosure. And you could say, well, yeah.

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Then we have further argue, does it matter? Deception on disclosure. But if we're just talking about the level of does it make the activity?

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Does it render the activity non-consensual? That that would be the view.

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And then there's the other broad approach, which is to say no, um, it depends on the type.

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So only objectively sufficiently serious or, you know,

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objectively material issues to do with the sexual activity can negate consent if the person is deceived about them.

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And then if it turned out that their consent was conditional on that.

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So it rains it in to certain types. Um, we both know people who take take both, uh, views.

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So there are difficulties with both approaches, right? I mean, especially if we start with the first one.

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Yeah. Um, that's that's going to be extremely inclusive when it comes to the just the kinds of the sheer number of deception.

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Yes. At different levels, including things that we would consider trivial, which could go to consent.

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And that's the main problem there. Right. Yes.

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So I think one phrase, which is often used to criticise that kind of all encompassing, all deal breakers,

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our consent initiating, um, sort of line of thinking is over criminalisation, it over criminalises.

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But as I say to my students. Well, what do you mean by buy by that?

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That's not in and of itself an answer. Right. Um, so I think there are different kinds of arguments that fall within that umbrella.

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One is that to say that, um, whenever the complainant gives consent or ostensible consent under some misapprehension

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of fact that matters or that would have made a difference to their decision making,

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that that vitiate consent,

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where you might say that that this is a wide range of cases that captures instances where there isn't really any more wrongdoing.

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And I think certainly the arguments that extend to all kinds of mistakes and

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non disclosures rather than just deceptions fall foul to that kind of problem.

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It's not at all obvious to me that in every case where had the defendant told the complainant something and she would have done something different,

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wouldn't have consented had she known the truth that there's been any kind of moral wrong, um, in play.

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Um, another argument made is a kind of pressure is like a predictability problem.

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So if you say that, well, all kinds of deceptions or all kinds of non disclosures are up for grabs in the criminal law, if you like.

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Um, it's still going to be only, only if it matters to this particular complainant.

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Sure. So sure there's all sorts of things you can withhold from your sexual partners,

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possibly even deceive them about people lie all the time about all sorts of things,

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and a lot of lies that people tell are completely irrelevant to a decision to consent or not.

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And so the criminal law has nothing to say about all of these deceptions. Well, the problem with that is you've got to make the decision ex-ante.

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You've got to make the decision beforehand. Right. You've got to know before you engage in any kind of sexual activity.

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Is this the kind of information I have to disclose? Is this the kind of information that I have to be truthful about,

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even though I might have reasons for, and sometimes quite legitimate reasons for not wanting to?

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Um, well, that depends on whether it matters to this person, but you might not have very much evidence,

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clear and direct good quality evidence about whether it does matter to this person or not.

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And so what do you do? You kind of disclose all the time just to be on the safe side.

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That might be quite burdensome for people. So you say real life is actually, you know, an interpersonal relationships are actually quite messy.

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It's, you know, messier than than this, this kind of decision. Maybe lawyers like to impose structure and clarity on the messiness of life.

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I think it makes us all feel a lot more comfortable when we can construct these neat little hypothetical scenarios and say,

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and that should be that's that should definitely be a crime.

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When somebody is in a bar and says, well, I'm only going to sleep with you because I believe that you are an architect.

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Yes, exactly. Or something like that. Really, one of the questions that we're asking here is,

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does the right to sexual autonomy entail the right to know absolutely everything that

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you might want to know that personally matters to you about a potential sexual partner,

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including their medical history, their gender history, their previous sexual experience,

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their health status, their STD's status, all of these sorts of things.

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And what I mean, what we do know about sexual autonomy is we all have the rights and we would call it a negative right thing,

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right to refuse sexual engagement with anybody for any reason whatsoever, including stupid reasons.

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Yeah. And including prejudice reasons. Yeah, right. We have that right?

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Um, but I think a key question here is, is an equivalence one.

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Is there an equivalence between, uh,

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sexual activity which happens under a deception which would have mattered to you and which would have caused you to refuse,

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and having sexual activity imposed on you against your will and the circumstances that made it against your will kind of being irrelevant.

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Are these two things absolutely equivalent?

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And I do, I think maybe some people writing about this draw that equivalence, maybe without interrogating it very much.

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They say, well, you know, sexual autonomy means the right to refuse for any reason.

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And if someone has deceived you, then, yeah, you've you've refused and your refusal has been overridden.

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Yeah. But I actually think well, one of the questions here is, has it been is that exactly the same thing?

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And you know, does the right to sexual autonomy stretch to that right to know up front literally anything that you might want to know?

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I think that's an important question, But I think we shouldn't get too distracted about the language of rape when we're asking it,

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because what we're what I think is more productive is to think about threshold levels of criminalisation.

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Should we be criminalising this conduct?

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And then we can have the discussion about how we label it, and should we label it in the same way as other forms of sexual offending?

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And I have my own views on, on on that. Um, which I don't think I, which I won't necessarily go into at this point, but but I think, you know,

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when we look at the property offences and we think about financial forms of fraud,

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your paradigmatic example of a financial crime is, you know, you've told me a lie.

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So I've given you a bunch of money, you know, you come and you say that you're going to do my window.

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I need some new double glazing.

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I answer the door and you give me a very persuasive pitch that I need new double glazing and that you're going to come round next week and do it.

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So I give you a cash deposit and you go away and you never come back.

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Now, I think in the world of property offences,

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we'd say I've given you that money under something as a result of some kind of fraudulent activity on your part,

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which has a sufficiently injurious or restrictive impact on my autonomy, such that the decision really isn't my own in any meaningful sense.

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Um, or at least isn't sufficiently my own in a meaningful sense.

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There's an autonomy problem here, and one to which the law ought to respond.

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Now, we may not criminalise it as theft.

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Um, let's not go into the relationship between theft and fraud and English criminal law, because that's like a whole other podcast.

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But but, you know, that's a crime and nobody really doubts that it is or ought to be.

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So it's not clear to me why we would deny an autonomy problem in case an a serious autonomy problem in cases of deceptions about deal breakers,

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which result in an individual agreeing to engage in sexual activity that they wouldn't have and they wouldn't have done so without the deception.

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Where I start to baulk is is when we are imposing duties of disclosure on people.

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And I think for me, that's why the deception non-disclosure distinction, which is also drawn in property offences,

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is quite important because I don't think the right to sexual autonomy can sensibly impose upon all of us an obligation to give a litany of every,

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you know, what are the things about you that you are most ashamed of? Please do tell your sexual partner that before.

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And we're not just talking about sort of penetrative sex here before you kiss the full kissing.

335
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Yeah, yeah. List everything about yourself they may not like in case it matters to them.

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That's an invidious position for all of us to be put in by the law.

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And I think that would be potentially the result of some of these, some of the broadest theories out there.

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Right. You know, to go back to the sort of gender history cases,

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I think there are really good reasons why trans people who who actively concealed the fact that they're trans.

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You know. There may be good reasons for for them doing so. And we should think, I think long and hard before the criminal law gets involved.

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Yeah, I think often in the, in the academic debate here.

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Not not always, but very often when we construct these scenarios and we, you know,

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we we test our intuitions about different kinds of deceptions, a certain paradigm is always set up.

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And the paradigm is this kind of manipulator, this exploiter, this deceiver, um, who is just out for sexual gratification,

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who wants to use somebody, uh, you know, who very kind of, you know, insidiously, um, plants this lie and all these sorts of things.

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Um, which, which constructs the scenario as something that is at least, uh, immoral behaviour,

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you know, at least very questionable behaviour, whether or not we think it ought to be criminal.

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But, yeah, I mean, as you're saying and stemming from what you're saying,

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I'm also interested in the sorts of deceptions that are more a function of vulnerability,

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because so often deception and non-disclosure stems from an unequal dynamic in which the deceiver is actually,

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you know, the so-called Siva is actually on the back foot. So you give this example.

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I mean, there are other examples people talk about, for instance,

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women who may not be truthful with partners about whether or not they're on contraception.

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Yeah. Um, who may be in abusive scenarios.

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And we can construct a kind of example in which this ends up being a, you know, a deal breaker for a person, a consent eating deception.

356
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Yeah.

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But it doesn't have that hallmark of manipulation and exploitation, which I think often covers the way we think about this issue in the abstract.

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I think I think that's right. And, you know, it's the response I've heard, sort of the next response in this kind of conversation is often,

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well, but you don't have to engage in sexual activity with this person.

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You don't have to deceive. You don't have to lie or you can deceive, but just don't engage in the sexual activity.

361
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Actually, that's a bad response, but I agree.

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I think it's an unrealistic response because the way in which some of these interpersonal interactions take shape,

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you know, there may be an existing relationship at the time.

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This conversation happens in an environment where you know someone's under pressure, you know where sexual activity is in the immediate offing.

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And so a kind of well, I'm not in the mood now. It will be read as a particular kind of answer.

366
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Um, well, you know, you just ask quite a lot of someone's sort of ability to think under pressure and make certain choices.

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And, and I think, I think, you know, we need to be careful here to distinguish between the ethical judgements we might make about the acceptability

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of someone's conduct and judgements we might make about when it's appropriate to use the criminal law,

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which is a very particular regulatory. I'm kind of going one step further.

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I'm saying I'm not sure in these scenarios that there's there's a moral there's there's a there's a moral.

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I mean, another example, I think there are some. I think you're right.

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I think there are there are certainly circumstances where I would agree there aren't.

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There is no moral wrongdoing. I think there are probably situations where there is some ethical problem in the interaction,

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but I wouldn't, uh, I wouldn't assume that automatically leads on to this should be a criminal offence.

375
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There's one final issue that I wanted to raise.

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This is something that we sort of touched on earlier, but if we go back to just thinking about those cases of deception,

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which we are quite sure at the very least entail immoral conduct, in some cases, very immoral conduct on the part of the deceiver.

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When we start to think about this in terms of rape through deception, uh, should we characterise this as rape?

379
00:37:41,630 --> 00:37:45,870
One question that I'm interested in is whether there is an equivalence that can be

380
00:37:45,990 --> 00:37:51,490
drawn here between what is going on in those scenarios and rape through coercion,

381
00:37:52,850 --> 00:37:57,530
um, whether that be by physical compulsion or threats or that sort of thing.

382
00:37:58,050 --> 00:38:05,410
And I wonder if there is a good case for saying, even if both of these types of conduct are seriously immoral,

383
00:38:06,810 --> 00:38:13,330
there is a difference in just how immoral they are between these two things,

384
00:38:13,690 --> 00:38:20,010
such that maybe banding them together in the same category put two quite, very different sorts of activities,

385
00:38:21,410 --> 00:38:25,690
um, kind of characterises them as the same as the same offence, maybe illegitimately.

386
00:38:26,490 --> 00:38:30,650
Obviously the kernel of the thought there is that in the rape through coercion cases,

387
00:38:31,410 --> 00:38:35,650
you have an element which is missing in the rape, the quote unquote, rape through deception cases,

388
00:38:36,570 --> 00:38:42,210
which is the real time subjective experience by the victim of sex as being non-consensual,

389
00:38:43,250 --> 00:38:46,120
which is uniquely, you might think, you know, distinctively traumatic.

390
00:38:47,480 --> 00:38:54,800
Um, and then we have this question of how how intrinsic is that to the nature of rape as a wrong, as a harm?

391
00:38:55,720 --> 00:39:00,440
Um, this is something which is obviously missing in research and cases, in the deception cases, people find out after the fact.

392
00:39:01,000 --> 00:39:05,920
Yeah. That sexual encounter that perhaps, you know, felt great at the time.

393
00:39:06,280 --> 00:39:11,160
Yeah. Um, transgressed some boundary, which is a harm in itself and can be extremely traumatising.

394
00:39:11,840 --> 00:39:15,200
And in some of these cases we're discussing must be extremely traumatising.

395
00:39:16,080 --> 00:39:19,240
But that's, that's quite a is there a different difference. Yeah.

396
00:39:19,440 --> 00:39:26,440
Yeah I think the my what I'm interested in when I hear that argument is how you would deal with the intoxication cases.

397
00:39:27,440 --> 00:39:35,480
How do you deal with cases where, where someone is unconscious and so isn't aware that a particular, um,

398
00:39:35,680 --> 00:39:40,800
activity is taking place, or that something in particular is being done to them, but only subsequently finds out.

399
00:39:40,920 --> 00:39:43,740
And so the trauma is all kind of ex sort of happens after the fact.

400
00:39:44,740 --> 00:39:50,740
There seems to be an analogy there to the deception cases, which those are clear as clear cases of rape as you can get.

401
00:39:51,100 --> 00:39:55,660
Yes. Someone is unconscious. Yeah. Well that's interesting, right? Because if you say, well, that's a clear case of rape.

402
00:39:56,420 --> 00:40:05,180
Well then the contemporaneous experience of a no being overridden doesn't seem to be necessary for a finding of rape.

403
00:40:06,180 --> 00:40:09,540
So what it for? What it is for something. Yeah.

404
00:40:09,940 --> 00:40:17,500
For for the essence of the wrong. Right. Yeah. And so. And so then we're not looking at drawing a distinction between coercion and deception.

405
00:40:18,060 --> 00:40:24,340
We're looking at just drawing the distinction between coercion and unconsciousness versus deception.

406
00:40:25,020 --> 00:40:31,020
And there I don't think you can then I think that the basis of that distinction becomes a little bit trickier to draw.

407
00:40:31,860 --> 00:40:36,420
Um, Rachel Tully, thank you very much. Thank you. Well, thank you, Kate, it's been a it's been a pleasure.