[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.
The topic we're discussing today is fraudulently obtained sex, meaning the pivotal question being in what conditions does a person's deception,
which induces somebody else to engage in some sexual activity with them, actually negate that person's consent to the sexual activity?
So a nice, easy question for everybody. Not complicated at all.
I mean, obviously we both know deception is just one of the ways that consent a sexual activity can get negated, recognised in law.
And we would recognise it just in moral discussions as well, the others being incapacity and coercion.
But I think you would agree with me that certainly in the academic literature it's probably the most contested area of sexual consent.
Yeah, and some pretty diverging views coming from scholars who otherwise might kind of think quite similarly about lots of things.
So it's interesting. Yeah. And a lot of development in the law in the past, I don't know.
Would you say like ten, ten, 20 years suddenly quite a lot going on.
So we'll get into all that like loads to talk about.
But I wanted to start with a case which I think is a particularly interesting and kind of difficult and sensitive case.
And I know it's a case that you've thought a lot about and written about, which is the case of Justine McNally.
Yes. So perhaps I'll hand it to you as the expert to introduce the case.
Thanks, Kate. You know, McNally is such an important case in this area.
Um, and it's incredibly complicated to talk about, because if I were to briefly describe the facts of McNally,
I would by necessity, be summarising and characterising quite a specific series of facts.
And, of course, in that process of summarising and characterisation, there's a layer of interpretation there,
and how you interpret the specific facts of McNally goes right to the heart of the controversies in that case.
So so it's not only, you know, you've thrown me a hard one to start with.
Sure. Um, so, so to try and engage in that process with as minimal interpretation as possible at the outset.
And let me say this, um, Justine McNally, as she was known at the time of the court hearings,
um, engaged in an online relationship with the complainant in that case,
um, whose name we don't know because complainants in sexual offences cases, as your listeners might might know, remain anonymous.
Um, so I'll just refer to her as the complainant for for ease.
Um, so Justine McNally and the complainant were in an online relationship for a number of years,
and they met when they were quite young and they waited until the complainant was 16 before they ever met in person.
And I think that's quite an important fact,
because I think it shows that there was some baseline of kind of respect and consideration within that relationship.
Um, that's at least what that fact sort of gives me an option.
Birth assigned female. Yes. Yes. But presenting. Well so when they identify.
Yes. So when they met online, the complainant knew McNally is a boy called Scott.
Right. And when they met in person, Scott turned up wearing as the court sort of puts it, boys clothes.
Um, and they engaged in various forms of sexual activity.
Um, essentially, um, McNally performed oral sex on the complainant and penetrated her digitally.
That's quite graphic for the first five minutes of the conversation, but the precision in these facts matter,
I think, and they matter for reasons that I'm sure will come onto in the course of our discussion.
So so, you know, on a couple of visits, um, McNally travelled down from Scotland to London.
This kind of activity took place. And then, as the court describes it at some point in, in, you know, a few years.
A few years into their relationship, there's some kind of confrontational discussion between McNally and the complainants mother.
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?
And McNally sort of the way that the court kind of frames this in their language.
It sort of framed almost like an admission of the truth.
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.
And that's the language used in the court's decision, not not mine.
Um, but that fact is kind of brushed aside in the kind of legal afterlife of that interaction.
And ultimately, McNally pleads guilty to and is convicted of. I think it was six counts of, of sexual assault, a serious sexual offence,
serious sexual offences, sexual assault by penetration, very serious sexual offences.
And it's very difficult to um, uh, to appeal against a criminal conviction once you've pleaded guilty.
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,
as the court understood it in that case, went to the complainants gender.
And that isn't relevant to legal consent validity. Well, that was the argument.
That was the argument that was made on appeal. Yes. That was the basis upon which the appeal was put.
The Court of Appeal was having none of it, um, and held that deception as to gender can vitiate consent.
Um, now that this case is interesting for a number of reasons, and when we think about cases,
I don't know how you think about them and how you teach your students to think about cases,
but I'd like to think of them as sort of there are two different realities or two different lives.
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?
And the other life of the case is the life we see and deal with more often, right?
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?
And I think we need to be careful, particularly with a case like McNally, to keep those two separate.
So on that, thinking about the facts, the facts as assumed by the court, including on appeal, without the complainant,
really believed that the person she was engaging with in sexual activity was a birth assigned male.
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,
which again, is another question separate from the point of law that we're going to discuss.
Yeah, yeah, I think it's difficult for, you know, having only read the Court of Appeal decision in that case,
and even if, even if one had read certain other documentation around that case,
you know, submissions by by parties on appeal,
I think it would be difficult to form a firm view as to what the complainant in that case really believed or not.
Um, but I think taking a step back and thinking about these cases systemically, cases involving trans defendants.
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.
When is an individual suspending disbelief? When it when does an individual sort of retreat to a position of,
I didn't know anything about this in the face of friends and family who don't understand or or
want to put some kind of narrative on top of a relationship that makes them feel uncomfortable.
I think all of these reactions are very likely in the world in which we live.
So, you know, I wouldn't feel comfortable making assumptions about that particular interaction.
But these are generally these are general questions I think of. These are very important to consider.
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,
for sure, in in subsequent case law takes on a life of its own.
This there seems to be something of an ambiguity in the point of law that it upholds.
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
be a gender which doesn't comport with their birth assigned sex is potentially a consent negating deception.
Would that be a fair description of the point of law,
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,
but I think that's a legitimate reading of, of the case.
Um, it's a it is a broader reading of the case than, than that which some might seek to put on it.
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,
there is plenty of evidence to suggest that at the time of the sexual activity in question,
you know, the defendant might have understood themselves to have been a trans man.
Right. Not at the time at which the appeal was heard, for sure.
Um, but what matters is how did they understand their identity at the time of the sexual interaction?
So could we zero in on the so-called deceptions then?
Because of course, it's an important aspect of this ruling that the court is saying there are deceptions about something.
And then we come to ask, okay, about what?
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,
but is authentically identifying as a male at that time anyway.
Then we come to ask, okay, so what was the fraud exactly?
And if we're saying, well, the fraud was that she was a girl, not a boy.
Then we can immediately see if people have made these points. Alex Sharp has made these points.
There's a certain tension there between transgender recognition and we have a Gender Recognition Act,
which which says transgender status confers genuine status.
And if we believe gender dysphoria is real, there's a tension right between saying, this is a deception, this is fake.
And what we want to say about transgender status, which is that's not fake. So, I mean, how do you think about that?
I think you I think you've identified one of the most troubling aspects, if not the most troubling aspect of the case there.
Um, you know, my starting point is, is this trans people are real.
They exist, and their identities are worthy of recognition and respect in life as well as law.
And I think it's important that we include in that discussion.
Non-binary people and intersex people, because we often approach.
I've seen discussions of McNally and this particular legal issue in general approach to a very kind of binary lens.
Right. We have this this narrative, um, you know, someone's born in the wrong body.
Um, they feel a lot of distress. They go through various medical procedures and sometimes legal procedures getting a gender recognition certificate.
And this leads to a sort of resolution of that distress.
And I think, you know, we need to recognise the limitations of that narrative when we're thinking about these, these cases,
because that doesn't approximate the lives of all trans people, you know, who, unsurprisingly, aren't a monolithic group.
Right? No, no identity group is. Um, and so I think that being said, for me,
if if an ethics of sexual communication and certainly a criminal law of sexual consent
at any point begins to characterise trans or intersex people is inherently deceptive.
Something's gone seriously wrong, right? And that's, I think, effectively the result of of this case.
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.
They begin by assuming that McNally's made a false representation. That's a term that lawyers like to use,
but essentially that McNally said something or done something that gives rise to a belief in the complainants mind.
That is false. But what if we started from a slightly different earlier point in the narrative?
What if we start by asking what false belief led the complainant to consent in terms when where she says she wouldn't have?
Had she known the truth? Now, the court characterised that false belief is as McNally is a man, McNally is a boy.
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.
Okay. That's the false belief that leads the complainant to consent when she she claims she she wouldn't have done anyway.
So if you say if you kind of narrow the so-called deception,
you said the deception was about transgender status or deception was about gender history, right?
Then we we have maybe an example of a possible deception which which does cohere with recognition of transgender status.
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.
It's kind of pretending that she was not a birth assigned female was forged.
Is that the idea? Well, I think I mean, at this stage,
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.
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.
Um, about, um, their legal gender status.
Um, really? All you have is. My name is Scott. I'm wearing clothes bought from the men's department.
Um, and some ambiguous discussions about sexual activity, which the the complainant and the defendant might have engaged in at a future point,
which involved penetration, but which weren't necessarily indicative of the the defendant sort of having any kinds of physical characteristics.
Let's put in much of these representations, you could say, are simply consistent with someone's understanding of themselves.
Absolutely. As being male as, you know, as gendering themselves as male.
Absolutely. Rather than being a particular deception about gender history.
Exactly, exactly. So this slightly leads us into the question of non-disclosure versus deceptions,
because we may be sceptical about in the case of McNally and in other cases like this.
What is the deception exactly? How are we identifying the deception in a way that's consistent with transgender status?
Non-Disclosure is maybe slightly easier to identify.
Is there a difference in the way the law would treat a simple failure to disclose this sort of information,
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,
thinking about the legal afterlives of cases as precedents. The court has drawn a distinction between deceptions and non disclosures.
The court holds that non disclosures are not capable of vitiated consent but that active deceptions are.
And so that characterisation of McNally's conduct as deceptive is really important within the judgement of McNally as you know,
because that is the first step on a ladder towards upholding McNally's conviction.
This isn't a case of non-disclosure. Notwithstanding the analysis I've just laid out for you, it's a case of deception.
Only some deceptions will Vitiate consent, say the court. The receptionist agenda is capable of initiating consent.
Um, moving forward ten, ten years, the leading authority in this area is now a case called Lawrence.
And in Lawrence, the courts seem to row back on that distinction between deception and non-disclosure.
And they sort of say, well, it doesn't really matter whether there's a deception or a failure to disclose.
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.
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,
because for an extremely long time,
the law really reined in the kinds of deceptions that could potentially negate consent to deceptions of very particular kinds.
You know, we had these deceptions as to what the law called the nature of the act, where, you know,
in these cases, fundamentally, the the victim didn't know what they were engaging with was even sex.
You know, it was even sexual, you know, fake medical procedures, that sort of thing.
And then the impersonation cases where somebody is, you know, fairly outlandishly.
But there were cases like this impersonating somebody's husband partner.
Um, but that was really it for a very, very long time.
And then kind of all of a sudden we have the law expanding the parameters of what we would call consent,
initiating deceptions and allowing for things like stuffing, um, yeah.
Pretending to be using a condom and not using the condom.
You know, we have the case where someone, um, said they wouldn't ejaculate inside a person and then did not accidentally.
And that being important, uh, other cases where the law is kind of allowing these these boundaries to expand.
So there's a lot happening here.
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.
And McNally is the nadir of that in a way.
So you you have the stealth in cases, you have the withdrawal case you mentioned, and then McNally, the court in McNally,
once they've identified this distinction between deception and non-disclosure, characterise McNally's conduct problematically as deceptive.
They they are unwilling to go so far as to say that all deceptions can vitiate consent.
They want to draw a distinction between the cases you've mentioned and a previous case in which
the court held that the non-disclosure of HIV status was irrelevant to consent validity.
So they say, well, that's because that's a non-disclosure case.
Um, McNally, on the other hand, is more akin to these other cases, the the stealth in case the withdrawal case.
There are also all these cases. The law continues to want to say the deception is just not the right kind of section.
You know the old case. Deceptions as to wealth, deceptions about whether the parties are validly married to one another.
Deceptions about whether one of the defendants married to someone else.
All of these kinds of deceptions are irrelevant, say the court. So how do they draw this distinction?
Well, the Court of Appeal in the Infinite Wisdom in McNally say, well, it's just common sense.
Common sense. You just apply your common sense.
You take a common sense approach to the evidence relating to choice and the freedom and capacity to make a choice,
and that will identify the route through the dilemma.
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,
um, but it's certainly not mine when you when you see the way in which this is played out in later cases.
And I think one of the real worries about that approach to drawing the line is the complete lack of certainty involved.
Um, and so, unsurprisingly, I think we've seen a contraction of the law in response to McNally.
And now the position is is really very few deceptions will vitiate consent to sexual activity.
It's a little bit broader than that historical position. Only impersonations of your spouse or sexual partner or fake medical procedures.
Um, we add to that deceptions which relate to the physical performance of the act,
which explains the stealth in cases and the withdrawal prior to ejaculation case.
You mentioned, we would say the law is more amenable when something is about kind of the, the, the mechanics.
Can we say like the mechanics of, of of an act. The deception goes to that to saying this is something which affects consent.
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.
Initiating deception. Can I introduce the spy cops scandal at this point?
I think most people know about this cluster of scandals.
It was to do with the Metropolitan Police some years ago, a number of them infiltrating activist groups,
some of these environmental groups under fake identities, pretending to be other activists, other campaigners.
And they befriended and then formed relationships with other women in these sorry,
with women in these groups, um, sexual relationships and in some cases, cohabiting relationships,
when they even father children with these women, all under these aliases and then disappeared out of their lives all of a sudden,
I mean, it's really despicable, horrendous behaviour.
And then at some point, the court is having to consider, could that be rape?
Yeah. Um, through this deception fruit. And the court decided, no, that isn't the kind of deception which really is consent.
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.
This is an identity deception, which really is quite entirely thoroughgoing, and there's no authenticity about it.
Right. You know, these men, um, knew entirely who they were.
They they were faking an entire identity with the complainants.
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.
And yet we have the court saying in McNally, this is a deception.
This is, you know, an identity type deception would be a way of reading it.
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.
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.
That applies to nobody else. Um, according to the courts,
it's entirely irrelevant the fact that you fabricated your entire identity so that you can not just fabricated your entire identity,
but particularly with an emphasis on the on the closely held values of the person,
that you are not only forming a sexual relationship with, but also spying on.
Yes. So you can spy on her and all of her friends? Yeah.
Fully exploitative. Exactly. Using that sexual. Sexual relationship.
Romantic relationship. To get close to this person.
In order to facilitate that ultimate end goal that you have, which is not sincere, which is not about forming a meaningful relationship.
At least I think that's a perfectly plausible reading of what's going on in these cases.
Um, and that's entirely irrelevant to consent validity.
On the other hand, someone living their life, um, being who they are,
is treated as some kind of fundamental, awful deception that's been perpetrated on,
on a sort of an individual which is vulnerable only by virtue of the fact that
they're cisgender and the person they're in a relationship with as transgender.
And that is assumed to have some kind of power dynamic of manipulation and control without any supporting evidence.
And to that effect, whether we think of the spy cops as engaging in full on rape or not,
you know, that's always that's a further question we could ask to ask.
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,
the, the sort of levels of, of manipulation and the existence even of any kind of moral wrongdoing, I think.
And yet the law seems to come to a very counterintuitive to me at least.
Um, response in these cases. I wonder if we can completely move away for now.
Yeah, yeah. I mean, I suppose they'll all be in the back because it's not helping us very much, right?
We just put that to one side and think about the purely philosophical debate here around consent.
And there's there's so much written on, on this, so much engagement. Yeah.
So I'm going to I'm going to simplify terribly and kind of summarise, but broadly speaking,
very roughly speaking there are kind of two views, two different stances about this, about deception and consent.
Um, one approach is to say that anything which we might call a deal breaker, something which mattered to the person giving consent,
which clearly mattered to them, um, on which their consent was conditional, which they are deceived about, negates their consent.
And it doesn't matter what it is, as long as it was significant enough to them to induce them to the sexual activity.
And it doesn't matter whether this was a deception or a non-disclosure. And you could say, well, yeah.
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?
Does it render the activity non-consensual? That that would be the view.
And then there's the other broad approach, which is to say no, um, it depends on the type.
So only objectively sufficiently serious or, you know,
objectively material issues to do with the sexual activity can negate consent if the person is deceived about them.
And then if it turned out that their consent was conditional on that.
So it rains it in to certain types. Um, we both know people who take take both, uh, views.
So there are difficulties with both approaches, right? I mean, especially if we start with the first one.
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.
Yes. At different levels, including things that we would consider trivial, which could go to consent.
And that's the main problem there. Right. Yes.
So I think one phrase, which is often used to criticise that kind of all encompassing, all deal breakers,
our consent initiating, um, sort of line of thinking is over criminalisation, it over criminalises.
But as I say to my students. Well, what do you mean by buy by that?
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.
One is that to say that, um, whenever the complainant gives consent or ostensible consent under some misapprehension
of fact that matters or that would have made a difference to their decision making,
that that vitiate consent,
where you might say that that this is a wide range of cases that captures instances where there isn't really any more wrongdoing.
And I think certainly the arguments that extend to all kinds of mistakes and
non disclosures rather than just deceptions fall foul to that kind of problem.
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,
wouldn't have consented had she known the truth that there's been any kind of moral wrong, um, in play.
Um, another argument made is a kind of pressure is like a predictability problem.
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.
Um, it's still going to be only, only if it matters to this particular complainant.
Sure. So sure there's all sorts of things you can withhold from your sexual partners,
possibly even deceive them about people lie all the time about all sorts of things,
and a lot of lies that people tell are completely irrelevant to a decision to consent or not.
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.
You've got to make the decision beforehand. Right. You've got to know before you engage in any kind of sexual activity.
Is this the kind of information I have to disclose? Is this the kind of information that I have to be truthful about,
even though I might have reasons for, and sometimes quite legitimate reasons for not wanting to?
Um, well, that depends on whether it matters to this person, but you might not have very much evidence,
clear and direct good quality evidence about whether it does matter to this person or not.
And so what do you do? You kind of disclose all the time just to be on the safe side.
That might be quite burdensome for people. So you say real life is actually, you know, an interpersonal relationships are actually quite messy.
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.
I think it makes us all feel a lot more comfortable when we can construct these neat little hypothetical scenarios and say,
and that should be that's that should definitely be a crime.
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.
Yes, exactly. Or something like that. Really, one of the questions that we're asking here is,
does the right to sexual autonomy entail the right to know absolutely everything that
you might want to know that personally matters to you about a potential sexual partner,
including their medical history, their gender history, their previous sexual experience,
their health status, their STD's status, all of these sorts of things.
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,
right to refuse sexual engagement with anybody for any reason whatsoever, including stupid reasons.
Yeah. And including prejudice reasons. Yeah, right. We have that right?
Um, but I think a key question here is, is an equivalence one.
Is there an equivalence between, uh,
sexual activity which happens under a deception which would have mattered to you and which would have caused you to refuse,
and having sexual activity imposed on you against your will and the circumstances that made it against your will kind of being irrelevant.
Are these two things absolutely equivalent?
And I do, I think maybe some people writing about this draw that equivalence, maybe without interrogating it very much.
They say, well, you know, sexual autonomy means the right to refuse for any reason.
And if someone has deceived you, then, yeah, you've you've refused and your refusal has been overridden.
Yeah. But I actually think well, one of the questions here is, has it been is that exactly the same thing?
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?
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,
because what we're what I think is more productive is to think about threshold levels of criminalisation.
Should we be criminalising this conduct?
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?
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,
when we look at the property offences and we think about financial forms of fraud,
your paradigmatic example of a financial crime is, you know, you've told me a lie.
So I've given you a bunch of money, you know, you come and you say that you're going to do my window.
I need some new double glazing.
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.
So I give you a cash deposit and you go away and you never come back.
Now, I think in the world of property offences,
we'd say I've given you that money under something as a result of some kind of fraudulent activity on your part,
which has a sufficiently injurious or restrictive impact on my autonomy, such that the decision really isn't my own in any meaningful sense.
Um, or at least isn't sufficiently my own in a meaningful sense.
There's an autonomy problem here, and one to which the law ought to respond.
Now, we may not criminalise it as theft.
Um, let's not go into the relationship between theft and fraud and English criminal law, because that's like a whole other podcast.
But but, you know, that's a crime and nobody really doubts that it is or ought to be.
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,
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.
Where I start to baulk is is when we are imposing duties of disclosure on people.
And I think for me, that's why the deception non-disclosure distinction, which is also drawn in property offences,
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,
you know, what are the things about you that you are most ashamed of? Please do tell your sexual partner that before.
And we're not just talking about sort of penetrative sex here before you kiss the full kissing.
Yeah, yeah. List everything about yourself they may not like in case it matters to them.
That's an invidious position for all of us to be put in by the law.
And I think that would be potentially the result of some of these, some of the broadest theories out there.
Right. You know, to go back to the sort of gender history cases,
I think there are really good reasons why trans people who who actively concealed the fact that they're trans.
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.
Yeah, I think often in the, in the academic debate here.
Not not always, but very often when we construct these scenarios and we, you know,
we we test our intuitions about different kinds of deceptions, a certain paradigm is always set up.
And the paradigm is this kind of manipulator, this exploiter, this deceiver, um, who is just out for sexual gratification,
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.
Um, which, which constructs the scenario as something that is at least, uh, immoral behaviour,
you know, at least very questionable behaviour, whether or not we think it ought to be criminal.
But, yeah, I mean, as you're saying and stemming from what you're saying,
I'm also interested in the sorts of deceptions that are more a function of vulnerability,
because so often deception and non-disclosure stems from an unequal dynamic in which the deceiver is actually,
you know, the so-called Siva is actually on the back foot. So you give this example.
I mean, there are other examples people talk about, for instance,
women who may not be truthful with partners about whether or not they're on contraception.
Yeah. Um, who may be in abusive scenarios.
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.
Yeah.
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.
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,
well, but you don't have to engage in sexual activity with this person.
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.
Actually, that's a bad response, but I agree.
I think it's an unrealistic response because the way in which some of these interpersonal interactions take shape,
you know, there may be an existing relationship at the time.
This conversation happens in an environment where you know someone's under pressure, you know where sexual activity is in the immediate offing.
And so a kind of well, I'm not in the mood now. It will be read as a particular kind of answer.
Um, well, you know, you just ask quite a lot of someone's sort of ability to think under pressure and make certain choices.
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
of someone's conduct and judgements we might make about when it's appropriate to use the criminal law,
which is a very particular regulatory. I'm kind of going one step further.
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.
I mean, another example, I think there are some. I think you're right.
I think there are there are certainly circumstances where I would agree there aren't.
There is no moral wrongdoing. I think there are probably situations where there is some ethical problem in the interaction,
but I wouldn't, uh, I wouldn't assume that automatically leads on to this should be a criminal offence.
There's one final issue that I wanted to raise.
This is something that we sort of touched on earlier, but if we go back to just thinking about those cases of deception,
which we are quite sure at the very least entail immoral conduct, in some cases, very immoral conduct on the part of the deceiver.
When we start to think about this in terms of rape through deception, uh, should we characterise this as rape?
One question that I'm interested in is whether there is an equivalence that can be
drawn here between what is going on in those scenarios and rape through coercion,
um, whether that be by physical compulsion or threats or that sort of thing.
And I wonder if there is a good case for saying, even if both of these types of conduct are seriously immoral,
there is a difference in just how immoral they are between these two things,
such that maybe banding them together in the same category put two quite, very different sorts of activities,
um, kind of characterises them as the same as the same offence, maybe illegitimately.
Obviously the kernel of the thought there is that in the rape through coercion cases,
you have an element which is missing in the rape, the quote unquote, rape through deception cases,
which is the real time subjective experience by the victim of sex as being non-consensual,
which is uniquely, you might think, you know, distinctively traumatic.
Um, and then we have this question of how how intrinsic is that to the nature of rape as a wrong, as a harm?
Um, this is something which is obviously missing in research and cases, in the deception cases, people find out after the fact.
Yeah. That sexual encounter that perhaps, you know, felt great at the time.
Yeah. Um, transgressed some boundary, which is a harm in itself and can be extremely traumatising.
And in some of these cases we're discussing must be extremely traumatising.
But that's, that's quite a is there a different difference. Yeah.
Yeah I think the my what I'm interested in when I hear that argument is how you would deal with the intoxication cases.
How do you deal with cases where, where someone is unconscious and so isn't aware that a particular, um,
activity is taking place, or that something in particular is being done to them, but only subsequently finds out.
And so the trauma is all kind of ex sort of happens after the fact.
There seems to be an analogy there to the deception cases, which those are clear as clear cases of rape as you can get.
Yes. Someone is unconscious. Yeah. Well that's interesting, right? Because if you say, well, that's a clear case of rape.
Well then the contemporaneous experience of a no being overridden doesn't seem to be necessary for a finding of rape.
So what it for? What it is for something. Yeah.
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.
We're looking at just drawing the distinction between coercion and unconsciousness versus deception.
And there I don't think you can then I think that the basis of that distinction becomes a little bit trickier to draw.
Um, Rachel Tully, thank you very much. Thank you. Well, thank you, Kate, it's been a it's been a pleasure.