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This article deals with the question of which kinds of deceptions vitiate consent to sexual relations. More specifically, it addresses the question of which characteristics of the perpetrator (e.g. their identity, wealth, or marital status), of their relations with the victim (e.g. marriage, long-term intentions), or of the sexual act itself (e.g. protected) vitiate consent when deception is involved. In this proposal, we offer our view on how this question  should  be answered: the criminalisation of deceptive sex should be cautiously extended to include deception regarding  any  characteristic of the deceiver or the relationship on which the deceived’s consent was conditional,  where the deceiver was aware of this conditionality . To support our proposal, we examine the different definitions of “deceptive sex” and diverse legal approaches taken to its criminalisation in the United Kingdom, Germany, and Israel, and discuss their respective merits and shortcomings. Surprisingly, different jurisdictions take strikingly different stances on these matters. This diversity ranges from the narrow definition of traditional English law (and its more opaque contemporary version in England, Canada, and Israel) to the minimalist approach of the German system. To counter the risk of over-criminalisation inherent in our proposal, we also propose using an offence  lighter than rape  and criminalising only those deceivers who  actively lied  and whose  actual  knowledge of the victim’s  hypothetical  refusal can be proven  beyond reasonable doubt . Overall, while our proposal would cautiously extend the criminalisation of deceptive sex to some types of cases that are currently not criminalised, it would also significantly limit the criminalisation of deceptive sex by enhancing the requirements regarding both the accused’s  actus reus  and their  mens rea .

Sex, Lies, and Reasonableness: The Case for Subjectifying the Criminalisation of Deceptive Sex