Friday, February 08, 2008

Rape by Fraud

Suppose an evil twin tricks his brother's wife into having sex with him (by pretending to be his brother, her husband). This is presumably rape. The deception seems, in this case, to nullify the target's consent (much as hypnosis, brainwashing, or immaturity might). We might capture this by suggesting that the woman only consented to have sex with her husband, not with his evil twin. The action she actually ended up with is not the one she consented to.

However, it isn't clear that misinformation always nullifies consent. Suppose a Tom Cruise impersonator picks up a girl at the bar, who would not have gone home with him if she knew his true identity. There's something morally dubious about this, but intuitively it doesn't seem to reach the bar for rape. But why not? Can't she say that she only consented to have sex with TC, not with his lookalike?

An obvious difference between the two cases is that only the former involves a pre-existing relationship/personal connection. But why does this make such a difference? One possibility is that we clearly have a weighty and legitimate interest in discriminating between potential sexual partners on the basis of existing personal connections. Impersonation of a personal acquaintance is thus an especially egregious form of fraudulent exploitation. But one's interest in having sex with a stranger who truly satisfies certain conditions may not call for quite the same degree of respect.

Does that sound right? It seems a bit harsh to delegitimize certain preferences like that. But I'm not sure how else to explain the moral difference between the two cases. (Any suggestions?) Also, does this proposal yield the intuitively right results in other cases, or does it need refinement?

13 comments:

  1. I would say that it is completely dependent on whether or not he was honest with her in the fact that he is not Tom Cruise but a Tom Cruise impersonator.

    In this case, the claim of rape comes from the act of deception. If he was honest with her and told her he was not really Tom Cruise, then he is no longer deceiving her. However, if he tells her he actually is Tom Cruise, then he is deceiving her and thus as much at fault as the twin of the husband.

    Now, the standard argument against the claim of rape would be that she should have been aware that he was not Tom Cruise, or worked to inform herself either way. I believe this argument to be incorrect if you are also going with the assumption that the TC impersonator claims outright that he actually is Tom Cruise in order to have sex with her.

    However, the strange shady legal ground you seem to be referencing is the case in which she makes the assumption that he is Tom Cruise simply because he looks and acts like Tom Cruise, but he never explicitly states that he is Tom Cruise and in fact would be perfectly honest with her if she were to inquiry in any fashion in that direction. At that point, the question arises of who is responsible for ensuring complete information. Does this guy have to at every situation like this announce that he is not, in fact, Tom Cruise? Or does the responsibility to gain that knowledge fall on the young girl (guy?) involved?

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  2. "if he tells her he actually is Tom Cruise, then he is deceiving her and thus as much at fault as the twin of the husband."

    Really? That just seems counterintuitive to me. (He's at fault to some degree, for sure, but not "as much" as if he were impersonating a personal acquaintance, I would think. And it sure doesn't sound like 'rape' as I use the term.)

    What would you think of a case of a bar-hopping guy who attempts to portray himself as more wealthy and powerful than he really is? Is it then rape if a woman is thus enticed into going home with him (when she otherwise wouldn't)?

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  3. The case of someone who attempts to portray himself as a person with, e.g., more wealth or power than he actually has seems different from the case of someone who restyles himself to look, act, etc. like a different, *specific* person. While it may be morally suspect to deceive someone into thinking you have more money than you actually do, it doesn't seem that sex resulting from such deception constitutes rape.

    I think it's difficult to separate various intuitions in the TC impersonator case, since (as anon pointed out) we expect the woman to realize that the person is not in fact TC, and also intuitions may be skewed by what we think about this woman's desire to have sex with Tom Cruise.

    I'd be more curious to see what you think about a case where the deceiver styles himself as a *specific* person--not someone famous, and not someone the woman has a personal history with. What if the woman has access to, say, a few dating websites that contain information on Mr. Right, including some snazzy photos. (Not unlike the websites she checks out that have similar information on Tom Cruise, like birth date, likes, dislikes, etc.) She sets up a date with Mr. Right via a short e-mail exchange, but his evil twin finds the e-mail and takes his place at the date. They later have sex under the presumption that he is Mr. Right (let's say he *does* explicitly claim to be Mr. Right, though I'm with Richard in thinking that do/allow isn't a difference-maker here). This case seems sketchier than the Tom Cruise case (here we do not expect the woman to realize the man is not Mr. Right). Is the short e-mail exchange sufficient to count as a pre-existing relationship?

    What about the following alternative. After checking out his profile on the various dating sites, the woman finds herself thinking about Mr. Right. A couple of days later, she thinks she recognizes Mr. Right in a bar. Knowing Mr. Right's name from the dating sites, she approaches the man, who (lying) confirms that he is Mr. Right. My intuitions about this case are similar to those I have about the initial case--it seems to me like the specificity of the deception and the woman's prior information are relevant. To return to specificity, a case in which someone deceives another by pretending to be someone who doesn't exist (i.e., inventing a persona, like the case of the guy who claims to be wealthy, but more elaborate, perhaps involving a false name, etc.) doesn't seem as problematic, for some reason. This leads me to think that the prior knowledge/expectations (of a *particular* person) stuff is doing the work. But I *don't* think such information in every case counts as a pre-existing relationship.

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  4. Huck - neat cases! I do think a "short e-mail exchange" is sufficient to establish a personal connection of the sort that matters here. But your alternative "Mr. Right" case is trickier. I agree that it does seem worse than the TC and wealth cases. Though it also seems to me significantly less bad than the personal connection cases. I'm not terribly confident of my intuitions here, but I'd still hesitate to classify it as 'rape'.

    It'll be interesting to hear what other readers think...

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  5. I think that the problem here is Platonism. We know that these behaviors are all disreputable to different degrees. We don't need to imagine that there is some natural line between "bad but not ethically punishable" and "calling for serious punishment".

    This general point brings me to speculate that in a world of perfect information there would be little need for law or punishment. The public knowledge of an action would provide adequate punishment for whatever the action was. There are some problems with this observation though, largely similar to the problems with jury nullification.

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  6. presumably you/we/society hold the fans relationship with ton cruise in less regard than a wife's relationship with her husband.

    What is interesting is what exactly is the most marginal case - imagine if a woman knows a man from a couple of dates, and his evil twin then impersonates him in order to have sex with her.

    What is the exact strength of that relationship that divides rape from not rape?

    Also I'm not entirely sure everyone thinks that the impersonation rape is rape because there was a guy on radio who admitted to doing more or less that - and the radio show did a 'tell us your stories" section. I didn't hear anyone ring up and talk about rape.

    Of course "if it should be considered rape" I see as a different question.

    GNZ

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  7. Well, what if we are going to adjust it a bit more and make the rapee slightly mentally slow.

    If a person convinced a rapee who is slightly mentally slow that having sex with him is a good idea, basically taking advantage of her retardation would that not be considered rape? If a figure convinced a mentally slow person through deception (and using the fact that they know that he or she is mentally slow.) From a legal standpoint this is considered rape and in fact has been prosecuted as such for many years in Canada, Britain and the States.

    Now, what if the person is foolish enough to be deceived by someone? To what degree of foolishness does it need to be before they become labeled "mentally slow" and thus legally have been raped?

    Similarly, the point I brought up earlier is the rape charge comes from the willful deception of one person on another for the reward of sex. Possibly, from a legal standpoint, the level of deception is important, but at the same time the person is abusing another person's trust, foolishness, intoxicated state, etc for the purposes of having sex with them even though that person would not have sex with them without being deceived.

    Another point, (and here is where my legal mentality shows up) I think also that we are somewhat confusing the terms rape and sexual assault. Legally, in many locales, rape is purely physical coercion, while sexual assault is commonly defined as any act of a sexual nature without voluntary and informed consent.

    So by the common definition of sexual assault, any form of deception to acquire sexual acts to be performed would be a violation of the informed consent aspect of the law.

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  8. Just to complicate the issue of responsibility here:

    A man meets a young woman (let's say at church, just for novelty's sake) and they subsequently have consensual sex. She tells him she's eighteen years old, but it turns out she's really fifteen. As I understand it, the legal system will still hold the man responsible for statutory rape.

    Similarly, a bar can be held accountable for serving an underage patron even if said patron presents convincing identification indicating legal drinking age.

    There's some precedent that those decieved have an obligation to investigate. One could argue that there's nothing prompting the wife to doubt the identity of her "husband," but she's likely aware of the existence of the twin. The Cruise fan would seem to have more reason to doubt in her situation, so maybe she's more easily held accountable for failing to confirm the impostor's identity.

    And I realize this mainly addresses legality, not morality, but the ideas seem related.

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  9. This post
    http://www.overcomingbias.com/2008/02/disguised-queri.html#more
    conveys what my comment above said in much more detail.

    By the way, is the demanding Consequentialist possible Transhumanist who goes by the name 'Steven' still posting here?

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  10. Michael - I'm more wondering what factors explain the moral differences between the cases. One can ask this without being a Platonist!

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  11. I think there is a fuzzy boundary - so fuzzy that even my own opinion regarding what is rape varies over short periods of time. As a result I have little hope for us to find an absolute definition applicable in the 'debate space'.

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  12. I tend to approach the matter from a theonomic perspective.

    The woman is a victim in the first instance, because she is unwittingly tricked into something she thinks is lawful behavior, but is not. Thus, the man has victimized her.

    The woman is not a victim in the latter instance, because she intends to engage in prohibited behavior. The Tom Cruise look-alike is not guiltless, of course, for he is also a co-wrongdoer with the woman in her fornication. Her mistake of fact (whether because of mere silliness or active fraud: imagine some advanced, Mission-Impossible-style mask) does not permit her to accuse the man of rape.

    It's sort of a "clean hands" principle.

    -Turretinfan

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  13. Fornication isn't the issue, because the first case is not (intuitively) affected by whether the woman and her partner are married.

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