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DECEPTION

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DECEPTION & CONSENT

Featuring Jonathan Herring (Oxford University)

Jonathan Herring, criminal lawyer at Oxford University, enters a legal and philosophical conversation on deception and how it relates to entitlement, seduction and bodily autonomy.

Available on your favourite platforms, via
"It is quite wrong for the courts or for anyone else to decide what kind of deception is considered trivial because it is an essential part of everyone’s sexual autonomy to be able to decide for themselves: “This is what’s important to me. These are the rules that I have about sex and other people should respect it.” It is such a personal and fundamental choice for each individual. "
Personal Dimension
"We should be looking at deception from the perspective of the person, who is going to have sex with the victim or the survivor. What did they think when they were having sex or touching their partner sexually. Because if they know their partner wouldn’t be consenting without a lie they are showing another lack of respect for autonomy for their partner."
Interpersonal Dimension
"A key message that needs to get across is that a sexual encounter that hasn’t been mutual, where one person has manipulated the other, actually isn’t a success for either party. It is about changing what makes a successful man and that idea of having hundreds of partners being a sign of an alpha male and being the top of the pile."
Societal Dimension
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Key Terms and Definitions

Here we clarified key terms and definitions to understand the topic better.

“Cat-fishing is an informal expression of a person who creates a false identity online in order to lure someone into establishing a relationship.”

Collins Dictionary

“Coercive control is a strategic form of ongoing oppression and terrorism used to instil fear. The abuser will use tactics, such as limiting access to money or monitoring all communication, as a controlling effort.”

Healthline

“A “conditional consent” case involves ostensible consent to sexual intercourse being vitiated, in circumstances where the conditions of the consent have not been met.”

Lexology

“Rape by deception is an action whereby a person obtains sexual agreement and has sexual intercourse of any type by fraud, deception, misrepresentation, or impersonation.”

Michael Mullen

“Gaslighting is a form of emotional abuse that’s seen in abusive relationships. It’s the act of manipulating a person by forcing them to question their thoughts, memories, and the events occurring around them.”

Healthline

“An omission is a general term for a failure to act, but it can have broad connotations in day to day life and the implications of such actions vary from situation to situation.”

DPP Law

“Post-Truth Age is relating to or denoting circumstances in which objective facts are less influential in shaping public opinion than appeals to emotion and personal belief.”

Oxford Dictionaries

Did you know… ?

Here are facts and figures on the topic.

Out of the 313 men participating, 23.4% admitted to having used “deception” at least once since the age of 14.

Of the 530 women surveyed, 6.6% admitted to having used deception at least once since the age of 14, with the most common tactic being pretending to be on birth control.

Almost 10% of the 626 participating admitted having engaged in stealthing at least once since the age of 14.

Around 35% of victims of catfishing experience significant psychological consequences.

Want to help spread the word? Share our animation on DECEPTION

Here are a few quick facts and some easy to understand information on this topic. Feel free to post to your social media accounts to get your friends involved.

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Deception Resources

Check out the following resources to learn more about nudity and consent.

I may destroy you

TV SERIES

Insecure Otis has all the answers when it comes to sex advice, thanks to his therapist mom. So rebel Maeve proposes a school sex-therapy clinic.

Mistaken Sex

ACADEMIC PAPER

This is an insightful paper by Clare Mcglynn on combating the phenomenon of IBSA.

Power and Consent In a post-truth society

ESSAY

Follow this campaign to regulate the global porn industry by highlighting that viewing illegal, stolen and non-consensual content is wrong.

Sweet Bobby

PODCAST

Sweet Bobby is a live, multi-part investigation in search of one of the world’s most sophisticated catfishers. It’s a story about who we are online, and how social media can be weaponized as a tool of abuse and coercion.

Myth Busters

Deception and consent are topics that are often misunderstood because of the myths surrounding them, here we want to clean up some of the most prominent misconceptions.

There is no such thing as “Deceptive Rape”.

Deception or fraud can compromise an individual's sexual autonomy to consent to sex and is therefore classified as rape.

Consent is based upon a fully-informed ongoing practice of checking in with each other in sexual encounters. In the case of deception or where facts are concealed, there is no consent. In other areas of law e.g. contracts, fraud results in strict penalties.

The severity of the deception is hard to assess.

The person that has been harmed can determine the severity of the deception.

People have different views on what is important to them about sex. It is not for anyone to say to someone, “this issue may be important to you but we think you should not care about it”. People can choose their own reasons and conditions for sex. They do not have to justify them.

Cheating and deceptive rape is one and the same thing.

Cheating does not need to include any deceptive rape.

If a person has a sexual relationship with a third party without their sexual partner’s knowledge it can be called cheating whether they tell their partner or not; however, if they continue a sexual relationship without mentioning the third party then it is deceptive rape because a decision based on full consent could not be made and the sexual autonomy has been severely harmed.

How to…

Check out these guidelines that help you to have conversations on consent.

... make sure your sexual partner can make a fully informed decision.

Advice: Ask your sexual partner what aspects are important to them when it comes to their choice of their sexual partner to make sure you do not violate their boundaries.

... deal with knowing about a deceptive rape of a friend?

Advice: It is always important to find ways to inform the victim if you know a deceptive rape is taking place so that they can protect their sexual autonomy and take necessary precautions to take tests in regards to their health.

... deal with the fact that a victim of a deceptive rape does not believe you?

Advice: Victims of deceptive rape do not know about the deceit and therefore most likely have a hard time believing you. Ideally, you present them with evidence but if they cannot or do not want to believe you then you need to understand that coercive control has a strong foothold on victims of deceptive rape.

... understand conditional consent?

Advice: Here is an example: If A agrees to sex with B on the condition that B is not married and if B is married and proceeds with sex, it is not the conditions are broken or withdrawn, they simply are not met. Conditions are key towards safeguarding each other’s sexual integrity and bodily autonomy.

Deception and Consent Cases

Here we highlight prominent cases.

Julian Assange v Swedish Prosecution Authority

CASE:
Assange, who was aware that it was the expressed wish of the injured party and a prerequisite of sexual intercourse that a condom be used, consummated unprotected sexual intercourse with her without her knowledge. It is an aggravating circumstance that Assange, who was aware that it was the expressed wish of the injured party and a prerequisite of sexual intercourse that a condom be used. still consummated unprotected sexual intercourse with her. The sexual act was designed to violate the injured party’s sexual integrity.

ANALYSIS:
Stelthing is rape.

Julio Morales

CASE:
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 pretence of being the woman’s boyfriend. 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.

ANALYSIS:
Impersonation is one element that could lead to deceptive rape. When a person is being tricked into believing another person’s false identity they cannot make sure that their sexual integrity is safeguarded and may press charges against them.

A singing teacher and their student

CASE:
D was a singing teacher who convinced V (a 16-year-old student) to let him do something to improve her singing voice. He was in fact having sexual intercourse with her. D was charged with rape. Although V had thought she consented, this was negated by fraud as to the quality and nature of the act and D was thus held liable.

ANALYSIS:
The quality and nature of sexual acts and the false explanation of what is being done in a situation where there is a teacher-student relationship or a doctor-patient relationship that clearly marks grave power imbalances may show if rape by deception has taken place.

Know Your Rights

Image-based sexual abuse has become more widespread in the past decade with the increasing prevalence and use of smartphones and digital cameras. The heightened visibility of these crimes has led to increased recognition of their seriousness and impact, with new laws and regulations developed to combat them.

Interpretations of Consent and Deception

Especially in the USA states have different legislation when it comes to deceptive rape.

Alabama (USA)

It’s a misdemeanour, classified as “sexual misconduct,” if consent was obtained by the use of any fraud or artifice.
Law: Ala. Code § 13A-6-65
(Case Text)

California (USA)

Every person who induces any other person to engage in sexual intercourse, sexual penetration, oral copulation, or sodomy when his or her consent is procured by false or fraudulent representation or pretense that is made with the intent to create fear, and which does induce fear, and that would cause a reasonable person in like circumstances to act contrary to the person’s free will, and does cause the victim to so act, is punishable by imprisonment in a county jail for not more than one year or in the state prison for two, three, or four years.
Law: West’s Ann.Cal.Penal Code § 266c
(IE Criminal Defense)

Tennessee (USA)

It’s considered rape if there’s “sexual penetration … accomplished by fraud.”
Law: Tenn. Code Ann. §39-13-503
(Case Text)

England and Wales

Section 76 provides two conclusive presumptions that the complainant did not consent to the activity and the defendant did not reasonably believe that the complainant consented. The prosecution must show that the defendant did the relevant act and that either of the circumstances in subsection 2 applies: the defendant intentionally deceived the complainant as to the “nature or the purpose of the act.” ( not the nature and quality of the act), or the defendant intentionally induced the complainant to consent by impersonation of a “person known personally to the complainant.”
Law: Conclusive presumptions (section 76 SOA 2003)
(CPS)

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This campaign was produced with the financial support of the European Union within the framework of the European Union Sivil Düşün Programme. Its contents are the sole responsibility of Nicole Bogott/The Philia Project e.V. and do not necessarily reflect the views of the European Union.

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