Why Agreement to Sex Is Not Consent

Rape (and sexual assault) in colloquial speech have connotations of sex by force or threat. But rape and sexual assault can occur without any force or threat. In “The Riddle of Rape-by-Deception and the Myth of Sexual Autonomy” Jed Rubenfeld, Professor of Law at Yale Law School, writes that having sex with a person who hasn’t consented to the act is rape. Always. No Exceptions.

While rape and sexual assault can most certainly take place without force or threat, Rubenfeld’s claim is too strong. A person can fail to give consent to a sexual act without the act thereby being an instance of rape or sexual assault—indeed without the act being morally wrong.

Rubenfeld is right that most instances in which one of the parties having sex (or both) have failed to give consent to the act, the act is morally wrong. Immoral sex need not be rape (or sexual assault), however. For example, if both sex partners are minors, they are not legally in a position to give consent. If they have sex, they have not given legal consent. But it doesn't follow that one person raped or assaulted the other. 'Rape’ is better understood as follows:

A’s sexual encounter with B counts as A's rape of B, just in case (i) A is in a position to give informed consent to have penetrative sex, (ii) A knows or ought to have known that B is not in a position to consent to have penetrative sex or is not verbally or physically agreeing to have penetrative sex, and (iii) A is proceeding to have penetrative sex with B, despite (ii).

Sexual assault can be defined analogously by substituting ‘have non-penetrative sex’ for ‘have penetrative sex’.

How do we determine the conditions under which sex, regardless of whether it is penetrative or not, is morally wrong? We can divide this question into two separate ones:

1. What does it take for a person to consent to sex with another person?
2. Is consensual sex ever morally wrong, and is non-consensual sex always morally wrong?

This part of the essay focuses on question 1. The second part will focus on question 2.

Consenting to Sex

In order to answer the question about the conditions under which sex is morally wrong, we need to know what it means to consent to sex. “Consent” is shorthand for “voluntary informed consent.” Agreeing to have sex does not count as consenting to an entire sexual encounter for three reasons.

1. Consent given prior to a sexual encounter can be withdrawn at any time.
2. Agreeing to have sex can be involuntary. Submission to a sexual encounter is involuntary when it is forced upon a dissenting person by the use of physical force, threat or incapacitating behavior. It is admittedly difficult to specify what exactly counts as threatening or incapacitating behavior. A dissenting person who is too shocked by the other person’s sexual approach to move away or resist is incapacitated, even if she does not feel threatened.
3. The person may not be in a position to consent. Children, for example, are unable to consent to sex. This is not because minors are unable to consent to anything. Certainly, if a parent asks an average six-year old whether she would like the parent to brush her hair, and the six-year old responds that she does, her agreement counts as consent. Six-year olds are normally old enough to understand what it means for someone to brush their hair, and hair brushing does not ordinarily have unforeseen and potentially harmful consequences. So, not only is the child voluntarily entering into the interaction, she also understands the nature and consequences of the action. A six-year old cannot ordinarily consent to sex, however, as she is not in a position to understand what the act entails. Similar remarks apply to at least some mentally challenged individuals.

A potentially more challenging question is that of what it takes for a mature individual who is mentally capable of understanding the nature and consequences of sex to be sufficiently informed to be able to give informed consent.

Being informed does not require knowing in advance what the activity will feel like. Adult virgins can consent to sex in spite of the fact that they are about to enter unfamiliar territory. When sex is voluntary, consent can be withdrawn if either person wants to end the act. So, being informed does not demand knowing exactly what the other person wants or expects.

Sexual Deceit

While being sufficient informed to be in a position to give consent does not demand knowing exactly what the other person wants or expects, being informed nonetheless requires certain expectations to be fulfilled. Consenting to sex is consenting to sex with a particular person (or persons). If the person you agree to have sex with is someone other than you think he or she is, your compliance does not count as consenting. If you believe you are about to have sex with your husband but unbeknownst to you the man in your bed is his twin brother, your compliance isn’t consensual—not even if he (for some peculiar reason) believes you are his wife.

Likewise, when consenting to an act, you consent to what you believe the act is. If you believe that you are consenting to a non-sexual act (e.g., a medical procedure) that turns out to be sex, your compliance does not count as consent.

Let’s call dishonesty or failure of disclosure aimed at increasing the chance that the impending sexual act will occur ‘sexual deceit’. Sexual deceit thus encompasses both failure to disclose information about oneself as well as lying about oneself.

The question is under what circumstances sexual deceit will make a sexual act morally problematic. In previous discussions of consent and deceit, it has been argued that using deceit to get sex is morally problematic when the victim of deception would not have consented, had he or she known about the trickery (Mappes, 1987; Rubenfeld, 2012-2013; Short, 2013; Dougherty, 2013).

The reason for this, it is argued, is that informed consent cannot be given when the person agree at least in part because of the fact that true information withheld or false information provided.

People’s psychological attitudes in society as a whole toward deceit-based sexual acts are reflected by legal trials and convictions as well as new legislation. Here are a few representative examples:

In 2009, California-resident Julio Morales was convicted for rape by fraud for sneaking into the dark bedroom of an 18-year old woman and having sex with her under the false pretense of being the woman’s boyfriend who had just left. The conviction was eventually overturned because the law of 1872 only criminalizes rape by fraud when someone impersonates a woman’s husband in order to get her consent. This loophole was closed when Assembly Bill 65 and Senate Bill 59 were signed into law in 2013.

In 2000 an Israeli man Eran Ben Avraham was convicted of fraud for pretending to be a pilot and a medical doctor in order to have sex with a woman. In Israel pilots and medical doctors are held in particularly high esteem by women and by their mothers (Bilsky, 2009).

In 2010 a married Israeli Arab Muslim man, Sabbar Kashur, was convicted of rape by deception after pretending to be a Jewish bachelor interested in a long-term relationship prior to having sex with a Jewish woman he just met. His initial sentence of two years but his sentence was eventually reduced to nine months.

Starting in 2014 Ricardo Agnant posed as an NFL football player for the Miami Dolphins by the name of Maserati Rick in order to pick up women. He backed up his story by inventing a digital personality whose persona was based on images from his one-time participation in a regional combine at the Dolphins facility in 2014 as well as photoshopped images of Dolphin players. Agnant’s scam was revealed in 2017 but he was never tried or convicted.

While the lack of consent is quite apparent in these kinds of cases, it is difficult to specify exactly what it takes for a person to be sufficiently informed about the other person or the impending act in order for compliance to count as consent. It would be unreasonable to treat sex between strangers as nonconsensual, owing to the mere fact that they are strangers.

There are two related yet distinct types of cases where it seems that consent is lacking, owing to a lack of information about the act or the other person that one ought to have had prior to complying. (i) Sex that is based on the other person being deceitful, and (ii) sex that is based on third-party deceit. Let’s deal with these in turn.

Second-Party Deception: Call information about another person or a joint activity with the other person ‘personally important information’ when the other person would have refused to comply, had he or she had the information in their possession.

Naturally, not all personally important information can have an impact on whether one’s compliance counts as consent. If, unbeknownst to you and against all odds, you have a new sexually transmitted disease for which no diagnostic tests have been developed, this fact is not something you could have obtained information about. So, you could not have informed you sex partner. Yet if your sex partner had had the information in their possession, they would not have agreed to have sex. Yet it is unreasonable to think that consent requires possessing information that cannot be obtained.

If, however, you withhold personally important information from your sex partner (by lying, covering up or not being forthcoming) as a way of making your sex partner comply, then their compliance is not based on being informed within reason. So, they are not sufficiently informed to be in a position to give informed consent to the act.

Cases of sexual misconduct based on sexual deceit include (among many others) lying about the use of contraception, lying about your age, gender, marital status, religion or job, lying about having been tested for sexually transmitted diseases and infections, pretending to be someone’s partner, withholding information about having arranged for the sexual encounter to be video recorded, and falsely making the partner believe that the sexual act is a medical procedure (Mappes, 1987; Rubenfeld, 2012-2013; Short, 2013; Dougherty, 2013).

There are many other cases of second-party deception that will make the deceived person unable to consent owing to lack of personally relevant information. Imagine that you have a serious crush on a boy Julian in your college class. Until now he has not paid any attention to you. Once day, however, he invites you on a dinner date, and you happily accept. After the dinner, Julian invites you to come over to his house. You are not a virgin, and hookups are quite common in your circles. So, you end up having sex. Later you learn that Julian was simply having sex with you in order to win a bet he made with his friend Luis.

Third-Party Deception: Deception by a third party can compromise consent as well. If a third party (not directly involved in the sexual act) withholds information that is personally important to the consenting person because it matters to whether he or she agrees to have sex, then their compliance is not based on being informed within reason. So, they are not sufficient informed to be in a position to give informed consent to the act.

Here is a real-life example of third-party deception. In 2010 Rutgers student Tyler Clementi asked his roommate Dharun Ravi to use their room on the evenings of September 19 and September 21 for a private visit. On September 19 Ravi left the computer webcam on and joined his friend Molly Wei in her room, where the two of them secretly viewed Clementi and his boyfriend in a sexual encounter. Shortly after the spying, Ravi posted a tweet about the incident: "Roommate asked for the room till midnight. I went into molly's room and turned on my webcam. I saw him making out with a dude. Yay.” In anticipation of Clementi’s second private evening, Ravi invited his friends via social media to join him in spying on Clementi but Clementi averted the attempt by disabling the webcam, and later that evening he reported the incidents to school officials. On September 22, only three days following the viewings, Clementi jumped from George Washington Bridge and was found dead in the Hudson River. Ravi was tried and convicted in 2012 on multiple charges related to the spying but he appealed and his sentence was reduced to “attempted violation of privacy.”

This is a tragic instance of a third party compromising consent (in this case both Clementi and his boyfriend’s consent) by withholding important information with the aim of viewing a sexual encounter without the knowledge of the primary parties. As Clementi or his boyfriend would not have agreed to have sex at the time in question, had they known about the remote viewing, neither was in a position to give informed consent. Ravi and Wei’s behavior was thus an instance of sexual misconduct by deception.

In the second part of this essay, we will look at cases of nonconsensual sex that are nonetheless moral and consensual sex that fails to be moral.