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Criminalising deceptive sex: sex, identity and recognition

Published online by Cambridge University Press:  04 November 2020

Chloë Kennedy Open the ORCID record for Chloë Kennedy [Opens in a new window]
Chloë Kennedy*
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School of Law, University of Edinburgh, Edinburgh, Scotland
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Abstract

This paper is concerned with when, if ever, deceptive sex should be criminalised. It defends the idea that it is necessary to distinguish between deceptions that will generally be punishable from those that will not and puts forward a novel framework for carrying out this task. Based on the concept of identity nonrecognition, this framework also offers a new way of understanding what makes certain kinds of deceptive sex wrongful. After setting out this framework, I analyse each of the deceptions that is most often carried out within ‘ordinary’ contexts, explaining why only some of these should generally be punished. The paper concludes by suggesting that identity nonrecognition has the potential to inform criminalisation debates more generally, and that its relevance extends beyond discussions about deceptive sex.

Keywords

criminal lawrape by deceptionsexual offencesconsentidentityrecognition
Type
Research Article
Information
Legal Studies , Volume 41 , Issue 1 , March 2021 , pp. 91 - 110
Copyright
Copyright © The Author(s), 2020. Published by Cambridge University Press

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Footnotes

Earlier versions of this paper were presented at the ‘Consent: Histories, Representations, and Frameworks for the Future’ conference at the University of Durham; the University of Edinburgh philosophy department ethics seminar series, organised by Guy Fletcher; the criminal law seminars series, organised by Antony Duff, Lindsay Farmer and Sandra Marshall; and workshops on consent at the University of Surrey, organised by Hrafn Asgeirsson and Kate Greasley, and at the University of Warwick, organised by Victor Tadros. I am grateful to the participants at these events for their questions and comments. I am also grateful to Andrew Cornford, Sharon Cowan, Alex Drace-Francis, Antony Duff, Lindsay Farmer, Euan MacDonald, Emily Postan, Patrick Tomlin and Rachel Clement Tolley for written comments. Any errors and deficiencies are mine. This research was supported by the AHRC Early Career Research Leader grant AH/S013180/1.

References

1 Green, SP Criminalizing Sex: A Unified Liberal Theory (Oxford: Oxford University Press, 2020) p 101CrossRefGoogle Scholar. The distinction between active, or express, deception and non-disclosure that some courts have tried to maintain (but was recently rejected in R v Lawrence [2020] EWCA Crim 971 (para 41)) is not the main focus of this paper but, as others have argued, it can be hard to sustain in practice and the difference in culpability is less clear than in other contexts: Sharpe, A ‘Expanding liability for sexual fraud through the concept of active deception: a flawed approach’ (2016) 80(1) The Journal of Criminal Law 28CrossRefGoogle Scholar.

2 The categories of deceptive sex that are punishable, and others that might come before courts, are set out in sections 3 and 4.

3 Eg public confidence in medical professionals: www.bbc.co.uk/news/uk-england-london-50727810; https://www.dailyrecord.co.uk/news/crime/sex-predator-doctor-branded-master-21451812. Although I discuss a case involving an undercover police officer who had sex with citizens to whom he had not disclosed his identity in subsequent sections of this paper, this example is used to consider the significance of deceptions about political beliefs and the difference between genuine and false identity expression. Since these issues might arise in the context of ordinary relationships, the case is relevant for my purposes even though the particular harms of police misconduct and the peculiar sanctions it deserves are not.

4 Falk describes deceptive sex that occurs within special relationships of power or authority – those involving ‘professional, trust-based alliances or relationships involving authoritative positions or power imbalances’ – as ‘the most noncontroversial and unassailable fact patterns’: Falk, PJ ‘Rape by fraud and rape by coercion’ (1998) 64(1) Brooklyn Law Journal 44Google Scholar at 131. Deceptive sex that occurs within the context of sex work is considered by many to be controversial but it cannot be addressed adequately within the confines of this paper.

5 In addition to focusing exclusively on deceptive sex that occurs within ordinary contexts, I am concerned only with sex that is solely deceptive. Cases that involve both deception and coercion, eg R v Jheeta [2007] EWCA 1699, where the defendant posed as a police officer but also made the complainant believe that she would be liable for a fine unless she had sex with him, are therefore excluded. For one account of the difference between deceptive and coercive sex, see Pundik, A ‘Coercion and deception in sexual relations’ (2015) 28(1) Canadian Journal of Law & Jurisprudence 92CrossRefGoogle Scholar.

6 In this way, this paper aims to develop a better understanding of what is valuable about sexuality and how this might be reflected, albeit imperfectly, in law: see Lacey, N ‘Unspeakable subjects, impossible rights: sexuality, integrity and criminal law’ (1998) 11(1) Canadian Journal of Law and Jurisprudence 47CrossRefGoogle Scholar at 52–54.

7 See https://gtr.ukri.org/projects?ref=AH%2FS013180%2F1; https://www.law.ed.ac.uk/research/research-projects/identity-deception.

8 This interpretation of sexual autonomy is discussed further in Gibson, M ‘Deceptive sexual relations: a theory of criminal liability’ (2020) 40(1) OJLS 82CrossRefGoogle Scholar at 94. For critical engagement with concepts of sexual autonomy, including their use in structuring sex offences see Munro, V ‘Sexual autonomy’ in Dubber, MD and Hörnle, T The Oxford Handbook of Criminal Law (Oxford: Oxford University Press, 2014)Google Scholar and Herring, J ‘Relational autonomy and rape’ in Sclater, S Day et al. Regulating Autonomy: Sex, Reproduction and Family (Oxford: Hart Publishing, 2009)Google Scholar.

9 Rubenfeld, J ‘The riddle of rape-by-deception and the myth of sexual autonomy’ (2013) 122(6) The Yale Law Journal 1372Google Scholar, arguing that only ‘violent’ sex (meaning sex that is forced by ‘bondage, beating, torture, imprisonment, or any other instrument of enslavement’) should constitute rape.

10 Eg Ramsay, P The Insecurity State: Vulnerable Autonomy and the Right to Security in the Criminal Law (Oxford: Oxford University Press, 2012)CrossRefGoogle Scholar.

11 Giddens, A Modernity and Self-Identity: Self and Society in the Late Modern Age (Cambridge: Polity Press, 1991) p 73Google Scholar; Ikäheimo, H ‘Conceptualizing causes for lack of recognition: capacities, costs and understanding’ (2015) Studies in Social and Political Thought 250CrossRefGoogle Scholar, doi: https://doi.org/10.20919/sspt.25.2015.45.

12 Autonomy and dignity do not seem to be substantively different in this context: Dan-Cohen, M ‘Defending dignity’ in Harmful Thoughts: Essays on Law, Self and Morality (New Jersey: Princeton University Press, 2002) p 150CrossRefGoogle Scholar. On dignity and sex offences see Kamir, O ‘A dignitarian feminist jurisprudence with applications to rape, sexual harassment and honor codes’ in West, R and Bowman, C Grant (eds) Research Handbook on Feminist Jurisprudence (Cheltenham: Edward Elgar, 2019) p 303Google Scholar. Kamir argues that deceptive sex involving ‘fundamental deceits’ should be a sex offence (p 316).

13 See eg Feinberg, J ‘Victims’ excuses: the case of fraudulently procured consent’ (1986) 96(2) Ethics 330Google Scholar.

14 See eg Tadros, V ‘Rape without consent’ (2006) 26(3) OJLS 515CrossRefGoogle Scholar. Much feminist literature has engaged critically with laws’ constructions of sexual consent and the extent to which they capture material and power inequality and relational agency: see eg Cowan, S ‘“Freedom and capacity to make a choice”: a feminist analysis of consent in the criminal law of rape’ in Munro, VE and Stychin, CF Sexuality and the Law: Feminist Engagements (Abingdon: Routledge-Cavendish, 2007) p 51Google Scholar.

15 McJunkin, B ‘Deconstructing rape by fraud’ (2014) 28(1) Columbia Journal of Gender and Law 1Google Scholar.

16 On the malleability of concepts like consent, coercion and exploitation and their capacity to be interpreted over- and under-inclusively see Munro, VE ‘An unholy trinity? Non-consent, coercion and exploitation in contemporary legal responses to sexual violence in England and Wales’ (2010) 63(1) Current Legal Problems 45CrossRefGoogle Scholar and Finch, E and Munro, VE ‘Breaking boundaries? Sexual consent in the jury room’ (2006) 26(3) Legal Studies 303CrossRefGoogle Scholar.

17 ‘Materiality’ and ‘sufficiently serious’ appear in various places (see eg Falk, above n 4, at 166–172) and ‘sufficiently serious’ was recently endorsed as a test by counsel for Monica in R v Monica [2019] 2 WLR 722.

18 On physical harm see LE Chiesa ‘Solving the riddle of rape by deception’ (2017) 35 Yale Law & Policy Review 407. Chiesa raises the possibility of emotional harm providing a basis on which to draw a line, but he does not develop this idea. On physical harm as a limit in tort law see Hasday, JE Intimate Lies and the Law (New York: Oxford University Press, 2019)CrossRefGoogle Scholar and Sacks, DP ‘Intentional sex torts’ (2008) 77(3) Fordham Law Review 1051Google Scholar.

19 Eg Pundik, A ‘The law of deception’ (2018) 93(1) Notre Dame Law Review Online 172Google Scholar.

20 Herring, J ‘Mistaken sex’ (2005) Criminal Law Review 511Google Scholar.

21 Madhloom, O ‘Deception, mistake and non-disclosure: challenging the current approach to protecting sexual autonomy’ (2019) 70(2) Northern Ireland Legal Quarterly 203CrossRefGoogle Scholar.

22 See also Dougherty, T ‘Sex, lies and consent’ (2013) 123(4) Ethics 717CrossRefGoogle Scholar, arguing that every ‘deal-breaker’ ought to render sexual consent invalid.

23 Apps that encourage people to set out in advance all of the conditions on their consent to sex have been widely criticised (eg https://www.vice.com/en_us/article/paqvn7/dont-fuck-anybody-who-wants-to-get-your-consent-uploaded-to-the-blockchain-legalfling-app).

24 I am grateful to Rachel Clement Tolley for drawing my attention to this point.

25 On the link between objective recklessness/negligence and setting standards see Kennedy, C ‘Questioning culpability: lessons from soterial-legal history’ (2018) 12(2) Law and Humanities 159CrossRefGoogle Scholar.

26 This is similar to the way that the Domestic Abuse (Scotland) Act 2018 does not require that the complainer actually experience any of the negative effects outlined in the legislation. Others, such as Gardner and Shute, have argued in favour of punishing rape on the basis that it is wrongful even when it is not harmful in particular cases: Gardner, J and Shute, S ‘The wrongness of rape’ in Horder, J (ed) Oxford Essays in Jurisprudence: Fourth Series (Oxford: Oxford University Press, 2000) p 193Google Scholar.

27 Eg vegansexuals that strongly object to having sex with or dating non-vegans, https://www.vice.com/en_uk/article/dpk3az/vegans-who-only-have-sex-with-vegans?fbclid=IwAR3FbI-uAocIHOwWzEvKimHg73H185E3XopbhNr6QR6x4k4OUxsUjG8pCXg.

28 C Taylor ‘The politics of recognition’ in A Guttmann (ed) Multiculturalism and the Politics of Recognition (Princeton: Princeton University Press, 1994) p 25.

29 Ibid, pp 25–26.

30 Ibid, p 36.

31 Although intimacy exists outside sexual relationships and sexual relationships do not necessarily lead to intimacy, sex is often part of achieving intimacy: Giddens, above n 11, p 96; Giddens, A The Transformation of Intimacy: Sexuality, Love and Eroticism in Modern Societies (Cambridge: Polity Press, 1992)Google Scholar.

32 Doniger, W The Bedtrick: Tales of Sex and Masquerade (Chicago: University of Chicago Press, 2000) pp 91–95CrossRefGoogle Scholar.

33 Laitinen, A ‘On the scope of “recognition”: the role of adequate regard and mutuality’ in Bush, H-C Schmidt am and Zurn, CF (eds) The Philosophy of Recognition: Historical and Contemporary Perspectives (Maryland: Lexington Books, 2010) p 319Google Scholar; Ikäheimo, H ‘Recognition, identity and subjectivity’ in Thompson, MJ (ed) The Palgrave Handbook of Critical Theory (New York: Palgrave MacMillan, 2017) p 567Google Scholar.

34 As Korsgaard writes, ‘[c]arving out a personal identity for which we are responsible is one of the inescapable tasks of human life’: Korsgaard, CM Self-Constitution: Agency, Identity, and Integrity (Oxford: Oxford University Press, 2009) p 24CrossRefGoogle Scholar.

35 Korsgaard, CM The Sources of Normativity (Cambridge: Cambridge University Press, 1996) pp 122–123CrossRefGoogle Scholar.

36 This insight can be applied to other decision-making processes mediated by law: Wall, J ‘Being yourself: authentic decision-making and depression’ in Foster, C and Herring, J (eds) Depression: Law and Ethics (Oxford: Oxford University Press, 2017) p 134Google Scholar.

37 MacKinnon, NJ and Heise, DR Self, Identity, and Social Institutions (New York: Palgrave MacMillan, 2010) p 114CrossRefGoogle Scholar; Laitinen, A ‘Recognition, needs and wrongness: two approaches’ (2009) 8(1) European Journal of Political Theory 13CrossRefGoogle Scholar.

38 MacKinnon and Heise, above n 37, p 166.

39 Eg Taylor, C Sources of the Self (Cambridge, Mass: Harvard University Press, 1989)Google Scholar; cf Lyshaug, B ‘Authenticity and the politics of identity: a critique of Charles Taylor's Politics of Recognition’ (2004) 3 Contemporary Political Theory 300CrossRefGoogle Scholar, which argues that in embracing the politics of recognition Taylor risks presenting identity as ossified.

40 Giddens, above n 11, pp 52–58; MacKinnon and Heise, above n 37, pp 96–107; Coulmas, F Identity: A Very Short Introduction (Oxford: Oxford University Press, 2019)CrossRefGoogle Scholar; Glas, G ‘Idem, ipse, and loss of the self’ (2003) 10(4) Philosophy, Psychiatry & Psychology 347CrossRefGoogle Scholar; D Pellauer and B Dauenhauer ‘Paul Ricoeur’ (Winter 2016) The Stanford Encyclopedia of Philosophy, https://plato.stanford.edu/archives/win2016/entries/ricoeur/.

41 MacKinnon and Heise, above n 37, pp 29–35, pp 50–70.

42 D Sollberger ‘On identity: from a philosophical point of view’ (2013) 7(1) Child and Adolescent Psychiatry and Mental Health 29.

43 On biological information and identity, see E Postan Defining Ourselves: Narrative Construction and Access to Personal Biological Information PhD thesis, https://era.ed.ac.uk/bitstream/handle/1842/25733/Postan2017.pdf?sequence=1; Postan, E ‘Defining ourselves: personal bioinformation as a tool of narrative self-conception’ (2016) 13(1) Journal of Bioethical Inquiry 133CrossRefGoogle ScholarPubMed.

44 Some roles are more significant than others, and the alteration or loss of a central one might be identity-shattering: Dan-Cohen, M ‘Constructing selves’ in Cross, T and Ambrose, D (eds) Morality, Ethics, and Gifted Minds (New York: Springer, 2009) p 151Google Scholar.

45 Morgan, S ‘Dark desires’ (2003) 6(4) Ethical Theory and Moral Practice 337CrossRefGoogle Scholar.

46 The account offered here supports the claim that deceiving others into sex is wrong because it causes them to act in ways that violate values that are important to them: Wertheimer, A Consent to Sexual Relations (Cambridge: Cambridge University Press, 2003) p 209CrossRefGoogle Scholar.

47 MacIntryre, A After Virtue: A Study in Moral Theory (London Duckworth, 1985) p 221Google Scholar.

48 McNay, L ‘Gender and narrative identity’ (1999) 4(3) Journal of Political Ideologies 315CrossRefGoogle Scholar.

49 MacKinnon and Heise, above n 37, pp 8, 10–11, 17, 19–22, 29–35.

50 It is worth reiterating the point, made in section 1, that it is the likely (and predictable) relationship between these deceptions and identity-formation that matters in identifying the wrong of identity nonrecognition.

51 R v Flattery (1877) 2 QBD 410.

52 R v Williams [1923] 1 KB 340.

53 R v Dee [1884] 14 LR Ir 468; Sexual Offences Act 1956, s 1(2). A number of US jurisdictions and the Model Penal Code refer to spousal impersonation in rape by deception laws: see Pundik, above n 19, at 174.

54 For a version of this argument in the American context see Falk, above n 4, at 66–67.

55 This is now listed as one of the two situations involving deception where there is no consent under the Sexual Offences (Scotland) Act 2009 (s 13(2)(d)) and one of the two situations where lack of consent, and lack of belief in consent, is conclusively presumed under the Sexual Offences Act 2003 (s 76(2)(a)).

56 In R v B [2007] 1 WLR 1567, the Court of Appeal held that failure to disclose one's HIV status would not invalidate consent to sex. According to the decision in R v McNally [2014] QB 593 (para 24), however, the judgment in R v B left open the possibility that active deception about one's HIV status might invalidate consent to sex (see also Lawrence, above n 1, where this point is recognised (para 40)). Canadian courts have held that failure to disclose HIV status and the ‘sabotage’ of contraception (condoms) can invalidate consent to sex (R v Cuerrier [1998] 2 SCR 371; R v Mabior 2012 SCC 47; R v Hutchinson 2014 SCC 19). For critical commentary see Grant, I ‘The prosecution of non-disclosure of HIV in Canada: time to rethink Cuerrier’ (2011) 5(1) McGill Journal of Law and Health 7Google Scholar.

57 Assange v Swedish Prosecution Authority [2011] EWHC 2849 (Admin). Non-consensual removal of condom has led to convictions for rape (later lowered to ‘defilement’) in Switzerland (https://www.reuters.com/article/us-swiss-stealthing/swiss-court-upholds-sentence-in-stealthing-condom-case-idUSKBN1851UN) and sexual assault in Germany, though this finding apparently meant that the sexual activity itself was deemed consensual (https://edition.cnn.com/2018/12/20/health/stealthing-germany-sexual-assault-scli-intl/index.html).

58 R (on the application of F) v DPP [2013] EWHC 945 (Admin).

59 Lawrence, above n 1, paras 4, 7, 39, 43. Like McNally, which is discussed further below, Lawrence was decided under s 74 of the Sexual Offences Act 2003, which is the general consent provision and states that a person consents if they agree by choice and have the freedom and capacity to make that choice, rather than s 76, which deals specifically with deceptions as to the nature or purpose of the act. For a summary of the case and short critique, see N Davis ‘Does a lie about fertility negate consent?’ 23 July 2020, https://www.parksquarebarristers.co.uk/news/lie-fertility-negate-consent/.

60 R v Elbekkay [1995] Crim LR 163; the second conclusive presumption of consent and lack of reasonable belief in consent under the Sexual Offences Act 2003 (s 76(2)(b)) and the second of the two situations involving deception where there is no consent under the Sexual Offences (Scotland) Act 2009 (s 13(2)(e)). Under the Italian Penal Code, it is punishable to induce someone to engage in sexual acts by impersonating another person: Cleave, RA Van ‘Sex, lies, and honour in Italian rape law’ (2005) 38 Suffolk University Law Review 427Google Scholar at 447.

61 Monica, above n 17, at para 76, discussing the judgment in the earlier case of McNally, above n 56 (para 26). In at least one case involving the undisclosed use of a prosthetic penis there was significant physical harm in addition to deception: HM Advocate v Carlos Delacruz unreported, 2018: http://www.scotland-judiciary.org.uk/8/2047/HMA-v-Carlos-Delacruz.

62 McNally, above n 56, at para 24.

63 Except perhaps in the cases of asexuality that are characterised by no sexual arousal and pansexuality: EM Morgan ‘Contemporary issues in sexual orientation and identity development in emerging adulthood’ in J Jensen Arnett (ed) The Oxford Handbook of Emerging Adulthood (Oxford: Oxford University Press, 2015) p 262.

64 A Sharpe ‘Why we should oppose gender identity fraud prosecutions’ Legal Voice 10 July 2017, http://legalvoice.org.uk/oppose-gender-identity-fraud-prosecutions/.

65 On the instances of ‘gender fraud’ prosecutions, including those that are for sex offences, in the US, Israel and Britain and for the most sustained engagement with the arguments surrounding the criminalisation of transgender defendants see A Sharpe Sexual Intimacy and Gender Identity ‘Fraud’: Reframing the Legal and Ethical Debate (New York: Routledge, 2018). On taking account of substantive inequality when debating criminalisation for ‘gender fraud’, see S Cowan ‘The heart of the matter: criminalising fraudulent consent to sex’ Edinburgh School of Law Research Paper No 2019/26, https://dx.doi.org/10.2139/ssrn.3429592.

66 Doniger, above n 32, p 91, emphasis added.

67 Soulsby, LK and Bennett, KM ‘When two become one: exploring identity in marriage and cohabitation’ (2017) 38(3) Journal of Family Issues 358CrossRefGoogle Scholar. In contrast, for some men who have sex with men dating apps appear to be provide a foundation for identity-construction insofar as they afford men greater control over the casual sexual encounters they seek: Jaspal, R ‘Gay men's construction and management of identity on Grindr’ (2017) 21(1) Sexuality and Culture 187CrossRefGoogle Scholar.

68 Merin, A and Pachankis, JE ‘The psychological impact of genital herpes stigma’ (2011) 16(1) Journal of Health Psychology 80CrossRefGoogle ScholarPubMed.

69 Baumgartner, LM ‘The incorporation of the HIV/AIDS identity into the self over time’ (2007) 17(7) Qualitative Health Research 919CrossRefGoogle Scholar; Baumgartner, LM and David, KN ‘Accepting being poz: the incorporation of the HIV identity into the Self’ (2009) 19(12) Qualitative Health Research 1730CrossRefGoogle Scholar.

70 T Lott ‘Becoming a parent is the greatest identity change we go through’, https://www.theguardian.com/lifeandstyle/2016/apr/29/becoming-a-parent-is-the-greatest-identity-change-we-go-through.

71 KR Smith Experiencing Abortion: A Phenomenological Investigation PhD dissertation, University of Tennessee (1998), https://trace.tennessee.edu/utk_graddiss/2514/; Beynon-Jones, SM ‘Untroubling abortion: a discourse analysis of women's accounts’ (2017) 27(2) Feminism & Psychology 225CrossRefGoogle ScholarPubMed.

72 Czechowski, K et al. ‘“That's not what was originally agreed to”: perceptions, outcomes, and legal contextualization of non-consensual condom removal in a Canadian sample’ (2019) 14(7) PLoS ONE at 12CrossRefGoogle Scholar. It is perhaps significant that the latter two responses, which made up the majority of the answers given, reflect the rationales found in Canadian legal judgments.

73 Brodsky, A “‘Rape-adjacent’: imagining legal responses to nonconsensual condom removal’ (2017) 32(2) Columbia Journal of Gender and Law 183Google Scholar at 187.

74 Czechowski et al, above n 72, at 13.

75 J Brennan ‘Stealth breeding: barebacking without consent’ (2017) 8(4) Psychology and Sexuality 318. One of the participants in the study speaks of ‘knocking up young guys’ (at 322).

76 Amanda Clough points out that the only risk involved in deception as to use of the contraceptive pill is pregnancy and wonders whether this, when it results in conception, ought to be considered reproduction (rather than sex) without consent: ‘Conditional consent and purposeful deception’ (2018) 82(2) Journal of Criminal Law 178. The same could be said about the withdrawal method, although the burdens of reproduction differ for men and women.

77 O'Byrne, P et al. ‘HIV criminal prosecutions and public health: an examination of the empirical research’ (2013) 39(2) Medical Humanities 85CrossRefGoogle ScholarPubMed.

78 Brodsky, above n 73, at 193.

79 Beade, GA ‘Who can blame whom? Moral standing to blame and punish deprived citizens’ (2019) 13(2) Criminal Law and Philosophy 271CrossRefGoogle Scholar.

80 If, as considered in the penultimate section, a civil action were available to the deceived party this loss of standing argument would not be likely to apply.

81 Travis, M ‘The vulnerability of heterosexuality: consent, gender deception and embodiment’ (2019) 28(3) Social & Legal Studies 303CrossRefGoogle Scholar; Cowan, above n 65.

82 Claims of identity nonrecognition can exist alongside claims about (and critiques of) materialist inequality: see S Hines Gender Diversity, Recognition and Citizenship: Towards a Politics of Difference (Basingstoke: Palgrave MacMillan, 2013).

83 It is worth repeating that I am sceptical about this claim in the case of transgender defendants.

84 For discussion of the complex relationships between discourses of ‘passing’ and deception, see Billard, TJ ‘“Passing” and the politics of deception: transgender bodies, cisgender aesthetics, and the policing of conspicuous marginal identities’ in Docan-Morgan, T (ed) The Palgrave Handbook of Deceptive Communication (Cham: Springer International Publishing, 2019) p 463Google Scholar.

85 Gross, A ‘Rape by deception and the policing of gender and nationality borders’ (2015) 24 Tulane Journal of Law & Sexuality 1Google Scholar.

86 Not prosecuting rather than mitigating punishment seems to be the appropriate response here, since prosecuting is a form of blaming: Campbell, L ‘Criminal labels, the European Convention on Human Rights and the presumption of innocence’ (2013) 76(4) MLR 681CrossRefGoogle Scholar at 688.

87 Eg age. Failure to acknowledge one's preferred age would not count as identity nonrecognition, since age is not (yet?) in any sense self-determined (https://www.bbc.co.uk/news/world-europe-46425774). For a tragic example of the significance that a mismatch between imputed and lived or self-identified age can hold, see https://openjusticecourtofprotection.org/2020/07/13/hunger-striking-for-his-identity-autonomy-capacity-and-justice/.

88 Hasday, above n 18, p 11.

89 Schmitz, A et al. ‘Do women pick up lies before men? The association between gender, deception patterns, and detection modes in online dating’ (2013) 3(3) Online Journal of Communication and Media Technologies 52CrossRefGoogle Scholar.

90 Alarid, L Fiftal and Vega, OL ‘Identity construction, self perceptions, and criminal behavior of incarcerated women’ (2010) 31(8) Deviant Behavior 704CrossRefGoogle Scholar.

91 Baxter, J ‘Is husband's class enough? Class location and class identity in the United States, Sweden, Norway, and Australia’ (1994) 59(2) American Sociological Review 220CrossRefGoogle Scholar.

92 Giddens, above n 11, pp 95–96; MacKinnon and Heise, above n 37, pp 79, 81.

93 I briefly discuss their potential legal salience in the next section, however.

94 See Chalmers, J and Leverick, F ‘Fair labelling in criminal law’ (2008) 71(2) MLR 217CrossRefGoogle Scholar.

95 In the different context of Hong Kong and Taiwan, ‘deceptions’ as to supernatural ability have underpinned prosecutions for procuring sex by deception and rape, respectively: Chen, J ‘Lying about god (and love) to get laid: the case study of criminalizing sex under religious false pretense in Hong Kong’ (2018) 51(3) Cornell International Law Journal 553Google Scholar; Chen, J ‘Joyous Buddha, Holy Father, and Dragon God desiring sex: a case study of rape by religious fraud in Taiwan’ (2018) 13(2) National Taiwan University Law Review 183Google Scholar.

96 Riley, N Schaefer ‘Til Faith Do Us Part: The Rise of Interfaith Marriage and the Future of American Religion, Family, and Society (New York: Oxford University Press, 2013)Google Scholar; Niekerk, J Van and Verkuyten, M ‘Interfaith marriages in Muslim majority countries: a multilevel approach’ (2018) 28(4) The International Journal for the Psychology of Religion 257Google Scholar.

97 Monica, above n 17, para 3.

98 If this kind of deception counted this would have the effect that an underage child who lied about or failed to disclose their age could be liable for a sex offence. As with incest laws that render both parties liable to prosecution, however, it would be possible not to prosecute the child.

99 On the disappearance of annulment actions based on deception as to racial background in post-civil rights era America, see Hasday, n above 18, pp 117–124.

100 Hughes, N et al. ‘Personal identity and the role of “carer” among relatives and friends of people with multiple sclerosis’ (2013) 96 Social Science & Medicine 78CrossRefGoogle Scholar.

101 In India, deception based on a promise to marry has been held to invalidate consent to sex: Garg, A ‘Consent, conjugality and crime: hegemonic constructions of rape laws in India’ (2019) 28(6) Social & Legal Studies 737CrossRefGoogle Scholar. The conviction in Israel of Sabbar Kashur of rape involved a married Arab man presenting himself as a Jewish bachelor who was interested in a significant, romantic relationship: see Pundik, above n 5, at 99.

102 MD White ‘Adultery: what about the other woman (or man)?’, https://www.psychologytoday.com/us/blog/maybe-its-just-me/201004/adultery-what-about-the-other-woman-or-man.

103 Alan, R First Aid for the Betrayed (Victoria: Trafford Publishing, 2006) p 19Google Scholar.

104 Stephens, AK and Emmers-Sommer, TM ‘Adults’ identities, attitudes, and orientations concerning consensual non-monogamy’ (2020) 17 Sexuality Research and Social Policy 469Google ScholarPubMed; Robinson, M ‘Polyamory and monogamy as strategic identities’ (2013) 13(1) Journal of Bisexuality 21CrossRefGoogle Scholar.

105 Barker, M ‘This is my partner, and this is my… partner's partner: constructing a polyamorous identity in a monogamous world’ (2005) 18(1) Journal of Constructivist Psychology 75CrossRefGoogle Scholar.

106 Stephens and Emmers-Sommer, above n 104, at 473.

107 It is notoriously difficult to ascertain the prevalence of infidelity but for one discussion of the phenomenon in the context of contemporary relationship expectations, see Perel, E The State of Affairs: Rethinking Infidelity (New York: Harper Collins, 2018)Google Scholar.

108 In contrast, under the Sexual Offences (Scotland) Act 2009 the prosecution has to prove a lack of reasonable belief in consent even where one of the circumstances that indicate there is no consent pertains (which includes deceptions that go to the nature or purpose of the act and impersonating someone known personally to the complainer) (cf GW v HM Advocate [2019] HCJAC 23). Under the Sexual Offences Act 2003, where either of the deceptions specified in the Act (which correspond with the two listed in the 2009 Act) occur, it is conclusively presumed that the complainant did not consent and that the defendant did not believe that the complainant consented.

109 Lacey, above n 6, at 66.

110 I do not here suggest what kind of onus this should be but note that in some jurisdictions, such as Canada, a similar defence imposes an evidentiary burden on the defendant: Barranco, K ‘Canadian sexual assault laws: a model for affirmative consent on college campuses’ (2016) 24(3) Michigan State International Law Review 801Google Scholar at 816.

111 As suggested by SF Colb ‘The Jerusalem ‘rape by deception’ case: can a lie transform consensual sex into rape?’, https://supreme.findlaw.com/legal-commentary/the-jerusalem-rape-by-deception-case-can-a-lie-transform-consensual-sex-into-rape.html. In Scotland, at least one instance of ‘gender fraud’ has been charged as ‘obtaining sexual intimacy by fraud’ (Wilson (2013, unreported)) and in Israel three cases heard between 1973 and 1998, before defendants began being convicted of rape five years later, were also prosecuted as an offence of this kind: see Pundik, above n 19, at 173.

112 cf Gibson, above n 8.

113 For some concerns about duplicative wrongs, see Stark, F ‘Tort law, expression and duplicative wrongs’ in Miller, P and Oberdiek, J (eds) Civil Wrongs and Justice in Private Law (Oxford: Oxford University Press, 2020) p 441Google Scholar.

114 Sacks, above n 18.

115 Eg Fraud Act 2006, s 5. In Scotland, fraud encompasses any ‘practical result’ obtained through intentional deception: Whyte (Craig) v HM Advocate [2017] HCJAC 14.

116 Hasday, above n 18, pp 140–152.

117 This would be in addition to the other psychological and emotional harms that are not adequately recognised: Cross, C et al. ‘Understanding romance fraud: insights from domestic violence research’ (2018) 58(6) British Journal of Criminology 1303CrossRefGoogle Scholar.

118 Especially when liability might attach to the unauthorised use of another's identity, such that the person whose image, name or voice is used is construed as the victim: see the Oklahoma Catfishing Liability Act 2016.

119 cf McNally at paras 25–26. On the problems of invoking common sense, see Rosenfeld, S Common Sense: A Political History (Cambridge, Mass: Harvard University Press, 2011)CrossRefGoogle Scholar.

120 A Srinivasan ‘Does anyone have the right to sex?’ (2018) 40(6) London Review of Books, https://www.lrb.co.uk/v40/n06/amia-srinivasan/does-anyone-have-the-right-to-sex.

121 So-called amatory torts that flourished in the nineteenth century, for example, were largely founded on women's financial and social dependency on men: Hasday, above n 18, ch 4; Leneman, L ‘Seduction in eighteenth and early nineteenth-century Scotland’ (1999) 78 The Scottish Historical Review 39CrossRefGoogle ScholarPubMed; Lettmaier, S Broken Engagements: The Action for Breach of Promise of Marriage and the Feminine Ideal, 1800–1940 (Oxford: Oxford University Press, 2010)CrossRefGoogle Scholar.

122 The role of families and educational authorities in notifying the police and amplifying the distress of the complainants in ‘gender fraud’ cases cannot be ignored: Travis, above n 81.