➡︎ download | save | print
➡︎ read the rest of this Modern Criminal Law Review Special Issue
Sexual Autonomy Under Pressure: Deception and Sexual Consent in the Digital Era
Cristina Valega Chipoco*
I. Introduction
In Inducing Intimacy: Deception, Consent and the Law, Chloë Kennedy contends that sexual autonomy, on its own, cannot serve as a defensible framework for addressing deception in sexual consent.[1] Among other concerns, relying solely on autonomy risks endorsing a wholly subjective model that would criminalize a wide range of deceptions and failures to disclose information in sexual contexts, in the name of protecting the other person’s autonomy.[2] Therefore, Kennedy proposes replacing sexual autonomy with authenticity and self-construction. These, she argues, are more socially embedded foundations that would limit a merely subjective approach to sexual consent and deception.[3] This paper responds to that move by recognizing the strength of Kennedy’s concerns, but contending that sexual autonomy—when refined and situated alongside other fundamental rights—remains a sufficient and preferable foundation.
Building on Rachel Tolley’s conceptual framework, which is based on a differentiated account of sexual deception (active versus passive) and non-disclosure and a proportionality approach,[4] this paper proposes a sexual autonomy-based framework that distinguishes between deceptions that are legally problematic and those that, although unethical, should not result in criminal liability. It maintains sexual autonomy as the protected interest in sexual offenses while recognizing that not all non-disclosures or deceptive acts vitiate sexual consent in a way that is relevant to criminal law. This also allows us to resist the imposition of disproportionate disclosure duties on marginalized groups.
To test the framework, the paper turns to novel scenarios of deception involving smart sex toys (internet-enabled haptic devices designed for sexual or erotic stimulation).[5] These cases destabilize a core distinction in mistake-based consent analysis—variously articulated as the distinction between “factum” and “inducement,” or between the nature of the act and the motives for consenting—that will be problematized below. They also illustrate that an autonomy framework, when properly balanced with other rights, can provide normative coherence. The paper concludes by outlining criteria for identifying deceptions that legally invalidate sexual consent, aiming to avoid over-criminalization and the erosion of fundamental rights. Thus, it aims to contribute to the ongoing debate regarding the line-drawing problem of which sexual deceptions should be legally criminalized.
II. The Autonomy/Authenticity Debate
“The decision to prioritise individual interests, which
is itself related to the dominance of autonomy, is as
contestable and morally charged as the decision to
make space for collective interests.”[6]
A. Why Kennedy Proposes Authenticity as the Underlying Value in Sexual Offenses
As mentioned, Kennedy advocates the recognition of authenticity instead of autonomy as the rooted ideal in sexual offenses.[7] This means, according to her own definition, prioritizing that people decide in accordance with their own self-understandings—like the value of autonomy also does—but additionally recognizing the importance of external horizons of meaning, presenting external referents in a more positive light.[8] Deceptions that infringe authenticity in a sexual interaction would, then, “involve information that is generally-speaking important to people in self-constructing terms.”[9] Authenticity would not only consider external referents but also social institutions and interpersonal relationships, which are usually important for people in the practices of inducing intimacy.[10] It is important to note that Kennedy also emphasizes that this is not a moral evaluation of sexuality, as it does not prescribe which forms of sex are desirable.[11]
Regarding the reasons why Kennedy proposes this shift, first she shows, through her thorough genealogical analysis of civil and criminal laws in Scotland across two hundred and fifty years, that social norms (especially around marriage) and cultural expectations—and not an objective law—were the main foundations for the regulation regarding deceptive sex and deceptive intimate relationships. And she shows how that is still the case even in contemporary times: social norms intrude on judgments about which deceptions matter and which do not.[12] By grounding sexual offences law in authenticity, she argues, it becomes possible to incorporate certain shared norms and horizons of meaning, while ensuring that this process remains transparent and constrained by other important values.[13] Such incorporation would no longer occur without proper reasoning. In her words: “[I]t would therefore be more upfront to acknowledge the role of convention and have an open discussion about how this should be incorporated into law.”[14]
Second, the author argues that if sexual autonomy is the sole interest underpinning the law regarding sexual offenses, other important interests—such as privacy—may appear secondary or not be considered at all.[15] Because the concept of autonomy is utterly subjective, she argues, it does not allow the law “to limit the range of qualifying deceptions in some ways that do not depend solely on the beliefs of the person wronged or the effect of these beliefs on their decision-making.”[16] It risks expansive criminalization, as sexual autonomy is a very personal construction and tends to value “choice for choice’s sake.”[17] In principle, every characteristic or past experience of a person could be demanded or expected to be disclosed for a sexual interaction to be considered consensual, simply because the other person deems it important.
In that regard, Kennedy also maintains that because autonomy is the sole basis for the law on sexual offences, there is an increasing expectation that non-disclosures between sexual partners should carry a legal consequence.[18] The purely subjective understanding of autonomy also prevents legal clarity, as criminal convictions could arise for any deception regarding a particular belief or preference that was relevant to the personal decision-making of a person.[19]
In her compelling words, “[T]he challenge is to find other substantive collective interests that can anchor this area of law but which fit contemporary sensibilities better than the now-outdated notion of marriage that formerly prevailed.”[20] For her, that is authenticity. It acknowledges that intimate relationships and sex are strongly related to self-construction in our current societies and that, therefore, they are also a source of potential harms and wrongs—also through deception and non-disclosure of certain information.[21] Based on this understanding, Kennedy contends that:
The particular data, experiences, statuses and roles that are likely to be important to self-construction vary across time and place and are roughly generalisable across populations. It is possible to identify ‘components’ of selfhood that will likely, but not necessarily, be significant to individuals’ identities and hence to identify what information is likely to be important to their decision-making.[22]
Nevertheless, Kennedy does conclude that, based on an authenticity framework, it is most likely that deceptions about the sexual nature of the act and wholesale identity deceptions would criminally qualify as deceptive sex. She contends the same for deceptions regarding potential pregnancy or disease, as “these are instances of identity nonrecognition, and thus qualifying deceptions, because of the way becoming a parent, undergoing a termination and contracting certain chronic, if treatable diseases are known to be connected to self-construction.”[23]
She argues the same for deceptions as to gender, religion, political views, sexual orientation, and regarding something that has been explicitly mentioned by someone as important to them, among other situations.[24] However, she asserts that there are other important considerations as to why some of these identity nonrecognition deceptions should not be prosecuted. In this respect, she posits that her framework needs to be complemented by specific analyses in cases involving certain marginalized groups.[25] Specifically, she refers to cases in which the behavior of the person who deceives can be explained by disadvantages they face that the state is at least partially responsible for creating. One example is people of marginalized nationalities who deceive others about their nationality.[26]
B. Points of Tension in Kennedy’s Argument
I find Kennedy’s empirically-grounded assessment very lucid. If social norms subtly permeate the legal assessment of sexual autonomy, it would be preferable to argue for their explicit normative assessment and to ensure that this evaluation is conducted in a transparent and constitutionally reasoned manner. Similarly, given that autonomy is a right inextricably linked to the personal sphere, it seems logical that it would be difficult to determine which deceptions should be criminalized without making a moral assessment of what matters in sexual interactions, given that everyone’s preferences and priorities are different.
However, the main shortcomings I identify in Kennedy’s arguments are (i) that her account risks portraying the right to autonomy as absolute, which can blur the distinction between its infringement and its violation; and (ii) the potential discriminatory effects that her own proposal generates and that cannot be addressed on the basis of her own theory. Concerning the first point, it is important to underscore that, like any fundamental right, sexual autonomy is not absolute and may, therefore, need to be balanced against other fundamental rights, such as the right to privacy, at least in certain limited respects. If it were to be considered unrestrictedly, like some of the purely subjectivist doctrine does, then I would agree with her, but that does not need to be the case, as will be examined below.
Regarding the second consideration, Kennedy also points out that deceptions as to certain identity factors or circumstances could most likely constitute situations of identity non-recognition and, therefore, merit criminalization under her framework—although this is ultimately set aside based on further arguments. In view of the protection of the right to equality and non-discrimination, as well as the right to privacy, in a social and democratic constitutional state, I find this conclusion problematic. It could force people to reveal very private characteristics that could predispose them to acts of rejection or violence because of their membership in a socially marginalized group. Such characteristics could include certain situations of disability, religious beliefs, or ethnic belonging. Furthermore, Kennedy’s proposal provides little guidance on how to distinguish between deception and non-disclosure. This could lead to additional issues regarding possible violations of the rights to equality and privacy, even when it is unclear whether the information should have been disclosed or if it was important to the other person.
III. Tolley’s Typology: A Differentiated and Proportional Approach to Sexual Deception
“The key to the line-drawing problem lies not in denying
the fact that all deceptions and relevant mistakes infringe
sexual integrity, but in recognising the importance of
distinguishing between the infringement of sexual
integrity and the violation of sexual integrity.”[27]
It is important to begin this section by addressing Kennedy’s concern that if (sexual) autonomy is considered the only value underlying sexual interactions, then the expectation to disclose extensive personal information becomes too broad and demanding. Nevertheless, I believe Tolley provides a typology of deception and non-disclosure in sexual contexts that addresses these concerns and better protects other fundamental rights. As the latter author says, an analysis that only considers sexual autonomy “fails to account for the competing rights and interests that militate against identifying all deceptions and relevant mistakes as consent-invalidating.”[28]
A. Tolley’s Differentiated Approach to Deception and Non-Disclosure
First, it is necessary to understand the author’s differentiated approach to deception (active or passive) and non-disclosure. It is important to note that we are not yet discussing whether these acts should be criminalized. For now, we are distinguishing the various scenarios that are typically considered and discussed as deception and how to differentiate them.
Active deception in the sexual context involves A generating a mistake in B, through words or actions, that is causally connected to the sexual consent of B.[29] For example, A is asked by B about their fertility status and A lies about it or falsely portrays themselves as infertile, knowing that this information is causal to B’s sexual consent. Passive deception involves A generating a mistake in B by not disclosing information that they are legally obliged to disclose and that is causally connected to the sexual consent of B.[30] To illustrate, imagine there is a legal obligation to disclose whether or not one intends or will be able to pay for commercial sex work, and A decides not to do this, while knowing the payment is causal to B’s sexual consent. Finally, non-disclosure broadly refers to not mentioning information that some people will consider important and others will not.[31] For instance, information regarding one’s own marital status, gender history, HIV-positive status, religion, and political affiliation, among others. If person B is mistaken because of person A’s non-disclosure—although it is an information deficit causal to B’s sexual consent —, it will be an uninduced mistake but not an act of deception.[32]
The distinction Tolley draws between passive deception and non-disclosure is highly significant because, as she explains, criminal law must adopt a narrower approach than morality in determining what constitutes deception. Otherwise, people might be considered criminally responsible for not disclosing information they did not know was expected to be disclosed and be criminalized based on an uninduced mistake.[33] In this regard, Tolley cites as an example various prosecutions and convictions of trans people in England and Wales on the grounds that they supposedly deceived the other person about their gender identity, and emphasizes that, in many of these cases, the courts conflated deception with mere non-disclosure and misidentified the object of the mistake: what was at stake was the trans person’s gender history, not their gender itself.[34] As Sharpe contends, associating trans people with impersonation and deception is to misunderstand trans identities and their ontology.[35]
Another reason for maintaining a differentiated approach between deception and non-disclosure is that imposing a general duty to disclose would be excessively burdensome, entailing a significant intrusion into an individual’s right to privacy.[36] Tolley illustrates this point by noting that, if such a duty were imposed, person A might feel compelled to disclose information they believe could be important to person B, based on their own insecurities about characteristics they fear may be socially undervalued. This would constitute a highly intrusive interference with person A’s right to privacy, and the information might ultimately be irrelevant to person B or even something person B would prefer not to know.[37] As Scheidegger points out, this aligns with the principle of self-responsibility: individuals must take accountability for possible information gaps, unless those gaps fall within the responsibility of the other person.[38]
Furthermore, Tolley’s typology presupposes the requirement of a legal duty to disclose to treat an act of non-disclosure as deception, which is consistent with the way criminal law routinely treats omissions as a basis for liability.[39]
B. Proportionality and the Balancing of Sexual Autonomy with Other Fundamental Rights
Tolley refers to the protected interest of sexual offenses mostly as sexual integrity and not autonomy (although sometimes as both),[40] and she argues that this value consists of three component rights: (i) the right to give or withhold consent, (ii) the right not to suffer illegitimate interference in the decision-making process, and (iii) the right to know the information relevant to the decision to give consent.[41] In my analysis, I will continue to frame the protected interest primarily in terms of sexual autonomy.
The first component right involves the basic and general decision to sexually interact with someone and cannot be outweighed by any other right. The second derivative right encompasses the ability to make a decision to sexually engage with someone, evaluating options, consequences, and preferences.[42] Tolley argues that this sub-right will frequently be affected, as individuals inevitably influence and are influenced by others within a social context. She nevertheless maintains that certain forms of interference—such as coercion, the exertion of undue influence, or particular forms of deception—constitute undue violations of this right. However, she also contends that not all instances of deception violate the sub-right to be free from illegitimate interference in the decision-making process, given the need to account for competing rights and interests.[43] Finally, the third component right refers to the right to know relevant information. Since this imposes a positive obligation on person A to disclose information in order to protect person B’s rights, this derivative right often needs to be balanced with person A’s other fundamental rights, such as privacy or integrity, or even person B’s rights, who may want to waive the right to know certain information.[44] In the words of Scheidegger:
When it comes to sexual orientation, gender history, a criminal past, or the faithfulness of D, all of which are aspects protected by D’s right to privacy, V simply does not have a “right to know.” Even if D lies about such matters in order to get V’s consent to sex, by downgrading the “deal-breaker” to a fact of which V has no right to know, her token of consent is valid.[45]
It is important to note that a key part of Tolley’s argument is the need for a causal link between deception and consent to sexual interaction. This ensures that the deception directly impacts the exercise of sexual autonomy by being directly connected to the sexual activity.[46] This paper takes a differentiated and proportional approach to sexual deception, similar to the one presented here. However, before building upon this framework, I will contrast and complement it with other existing models to refine the proposal.
IV. Refining the Deception and Sexual Consent Assessment Framework
Kennedy brings up a very important point when she states that a holistic legal approach to sexual deceptions is better than isolated responses.[47] This allows for a coherent theorization of which deceptive actions in the sexual context should be considered as trespassing the threshold for legal criminalization and an evaluation of the reasons. In this section, I present various such frameworks, such as purely subjective ones and those that adopt the traditional division between fraud in the factum and fraud in the inducement (also known as fraud regarding the nature of the act versus fraud regarding the motives). I examine their strengths and shortcomings, and I systematize the steps that I believe are important for determining whether an act of deception should invalidate sexual consent, allowing the act to be legally considered one of sexual violence.
I strongly agree that a clear threshold is necessary to determine which deceptions in the sexual sphere warrant criminalization. Some forms of deception, while undoubtedly unethical, should not attract a criminal response. First, as widely accepted, criminal law ought to be reserved for the most serious violations of fundamental rights. Second, theorists of asexuality have emphasized the need to deconstruct the disproportionate weight assigned to sexual consent in contrast to consent in other intimate contexts.[48]
A. Critical Engagement with Typologies of Deception and Sexual Consent
I share Kennedy’s critical stance towards existing frameworks for evaluating deception in the sexual realm and find it important to engage with some of these to justify the approach I subsequently adopt.
1. Subjective Framework: All Deal-Breakers Should be Criminalized
The subjective account advances that all deceptions that are deal-breakers should be criminalized. For example, Herring proposes that a sexual interaction should be considered non-consensual when person A: (i) is mistaken about a fact and (ii) would not have consented had they known the truth about that fact. Person B would deserve punishment solely if they knew or should have known that the specific fact was fundamental to person A’s consent.[49] This framework emphasizes what is important to person A, specifically. That is why Herring highlights that the mistake does not have to be something considered important to a reasonable person, if it was a prerequisite for consent for the particular person A.[50] He argues this because the meaning of the sexual act depends strongly on the cultural understandings that a person attributes to it. Thus, the author emphasizes the importance of considering how the victim understood the act to which they were consenting, noting that sexual interactions can have different meanings, including love, religious and spiritual unions, physical pleasure, and procreation.[51]
In Herring’s words, “[F]or many people there is all the difference in the world between sexual intercourse with someone who loves them and with someone who does not.”[52] And, therefore, the law should not determine which mistakes are more important than others in sexual interactions.[53] The argument thus resurfaces in the claim that, if sexual autonomy and consent are the guiding legal principles in sex law, then any instance of sex obtained through deception ought to qualify as vitiating consent.[54]
Kennedy criticizes this account mostly by arguing that subjective conceptions of consent legitimize the infiltration of conventional norms and expectations.[55] Moreover, this framework also effectively imposes an obligation on people to disclose intensely private information, such as that related to previous sexual history, ethnicity, religion, gender history or identity, reproductive capacity, previous criminal convictions, virginity or non-virginity, marital status (including separation or divorce or the fact that one is hiding from an abusive spouse), HIV status or other health information, and disability, among others.[56] And it does that without even knowing ex ante the scope of that obligation.[57]
According to Tolley, the subjective perspective acknowledges that if there is a deal-breaking fact, any consent given by person A regarding person B’s conduct is invalid, regardless of whether person A or person B knew, should have known, or could have discovered the existence of those facts. This perspective does not allow for a clear distinction between mistakes and deception.[58] For example, there could be a fact material to person A’s consent that person B does not reveal. [59]
It also legally legitimizes discriminatory factors as to the materiality of the sexual interaction, promoting intolerant attitudes, such as those based on whether someone is a trans person, disabled or from a specific nationality.[60] It is important to note that this questioning is not a call to punish those who discriminate. Rather, it is a call for those who are discriminated against to not be punished criminally.[61]
Moreover, a criminal normative assessment should be intersubjective, protecting sexual autonomy and considering the rights and duties of all parties involved in a sexual relationship.[62] Therefore, while deal-breakers are necessary, they are not sufficient to invalidate sexual consent. [63] Nevertheless, the subjective account emphasizes the importance of acknowledging and protecting the fact that the understanding and embodiment of sexual autonomy can differ from person to person and can be closely connected to one’s identity, as Kennedy also emphasizes in her authenticity framework.
2. Ontological Framework: Deceptions Regarding So-Called Material Features of the Sexual Interaction Should Be Criminalized
Although they call it by different names, different authors subscribe to this position. These names include deceptions based on the factum (as opposed to the inducement), deceptions based on the nature of the sexual act (as opposed to the motives), and deceptions concerning the legally protected interest (as opposed to those concerning the consideration or motives). For example, in the Spanish context, Coca argues that only deceptions related to knowledge of one’s participation in a sexual interaction, the personal identities of those participating, and the degree of physical intrusion during the sexual act should be considered criminally relevant.[64] Similarly, Castellví, who is also approaching the subject from a Spanish perspective, argues that the only deceptions that should matter are those relating to the physical contact or sexual nature of the accepted acts.[65] For instance, he asserts that lying about using a condom should be a crime because skin-to-skin contact differs from skin-to-condom contact.[66] Along similar lines for the German context, Hörnle states:
German criminal law does not prohibit deceptions that influence persons’ motives for deciding in favour of sexual acts. The mental attitude called “will” in section 177(1) [German Criminal Code] must be present, but it does not matter why. If it came through false assumptions about marital status, other biographical features, or the sincerity of emotions, this is not a criminal offence, not even if errors were created by intentional deception. Deceptions can lead to criminal liability for sexual assault, but only if they concern the quality of the sexual act. If the accused has performed a different sexual act than the one consented by the other person, this can be sexual assault: if, from the perspective of an objective observer, prior communication had made it clear that more intrusive and/or hurtful sexual practice was not covered by the complainant’s will. The practice called stealthing is another example for criminally relevant deceptions.[67]
These authors share a common standpoint: they want to limit the criminalization of mistakes and deceptions based on an objective factor that is not rooted in sexual moralism and that distinguishes qualifying deceptions.
However, as Kennedy points out, this model can be criticized as incomplete for two reasons. First, it depends on how the act is interpreted, which can lead to inconsistent legal responses. Second, it is difficult to establish where one act ends and another begins, given the complexity of the issue.[68] She asks: “would sex with an expired condom be a different act to sex with one within date, for example?”[69] Scheidegger argues similarly, pointing out that “there is no principled way to determine what counts as “the act itself” and what is merely a collateral matter.”[70] Kleinig puts forward that this normative undergirding is not uncontroversial—it can reflect cultural and other prejudices that stand in need of reevaluation, as well as normative considerations regarding the seriousness of the deception.[71] It is argued that the argument contends that one is consenting to sex and not to sex with a particular person under particular conditions.[72]
Even Hörnle herself states that it is difficult to draw the line between social factors that should not be considered and potentially relevant physiological attributes of the sexual act.[73] Moreover, Pedernera points out that the distinction between fraud in the factum and fraud in the inducement may be relevant in property crimes because the identity of those involved is usually irrelevant and fungible. This is not the case in sexual crimes.[74] The boundary of what counts as material or objective is drawn through arguments about what qualifies as a relevant physical change, a line that is itself contingent and open to debate. While this ontological differentiation may appear entirely objective, it is in fact an intentional and non-neutral decision. In Tolley’s words:
If legally relevant deception and mistakes should be confined to those which go to an ‘essential aspect’ of the sexual activity, or are non-trivial in some way, it raises the question: who is to decide what is essential or trivial. To allow C to decide for herself would be to concede an expansionist account. But a restricted account must grapple with the difficult observation that one’s experience (including one’s gender, religion, age, upbringing) may well have a bearing both on how one distinguishes between important or trivial information, and also on how one might imagine the majority of society would draw such a distinction.[75]
Another argument critical to these proposals is that put forward by Tolley, who argues that these material positions emphasize the physical aspect of the sexual interaction while overlooking the fact that the core of rape is not an experiential account of harm, but rather the violation of sexual freedom.[76] Furthermore, I agree with Kennedy’s criticism of the ontological account’s absolute exclusion of deceptions relating to inducements. She argues that certain inducements can be important to the general population and therefore “it is not clear why they should be treated differently to deceptions relating to the acts or facts (assuming these could be clearly distinguished).”[77]
Additionally, Tolley’s model addresses concerns raised by proponents of the ontological account. These proponents argue that without a material criterion, not only could deceptions be criminalized, but also mere mistakes. They also argue that discriminatory motives could be legitimized.[78] As demonstrated in section three, the differentiated model distinguishes between deceptive acts and non-disclosures and incorporates the principle of proportionality.
Nevertheless, the ontological framework provides an important insight: certain deceptions in the sexual sphere may alter the object of the act itself. This emphasizes that the issue at hand is not only the form of consent, but also its substantive content.[79] This is a valuable consideration for any refined framework on this matter.
3. Other Frameworks
I agree with Kennedy’s argument that accounts of deception which limit qualifying deceptions to those involving physical harm are underinclusive. Nowadays, it is widely accepted that interests beyond physical integrity should be protected in sexual interactions.[80] For similar reasons, she also rejects establishing the threshold around deceptions involving the risk of reproduction.[81] I would argue that is not at the core of the protected interest of sexual autonomy.[82]
B. Towards My Proposed Framework
Building on Kennedy’s observations and Tolley’s approach and considering the strengths and limitations of the aforementioned theories, I propose a tiered framework for identifying qualifying deceptions in sexual contexts. It is important to note that this framework is provisional and must be adapted to the relevant social setting and jurisdiction. The first level of this assessment framework is called the Altered Sexual Act Threshold. At this stage, the central question is whether the deception crosses the threshold by altering the object of the sexual act itself. As discussed, I align with the scholarship that challenges the ontological account of deception, which rightly notes the difficulty, if not impossibility, of distinguishing between the essential and the peripheral elements of a sexual act. At the same time, drawing on Castellví, I contend that certain elements—physical contact and the sexual dimension of the act—are indispensable, although not alone exhaustive, to the definition of a sexual act.[83] Where I part ways with the ontological account is in contending that the recognition of these indispensable elements does not imply that no other elements may also be substantive to the definition of a sexual act. It simply means that these two are always present.
Without acknowledging this, I would argue, the very notion of sexual consent risks losing its purpose. Consider the following scenarios: If A consents to being penetrated in the mouth by B, but B lies and uses the physical closeness with A to penetrate them through the anus instead, then B has performed a different sexual act (different physical touch) than the one to which A consented. If A consents to sexual penetration with B, but C impersonates B, then a different sexual act has taken place (different physical touch because of different participant). And if A consents to the insertion of a penis because a doctor convinces them it is a medical treatment for a rare disease, but the act in fact has a sexual dimension, then the doctor has carried out a sexual act without consent (intersubjective sexual dimension present without being consented to).
In such cases, the deception affects the very threshold of the sexual act itself and should therefore not be treated as sexual violence by deception, but rather as sexual violence through the performance of a different sexual act from the one originally consented to. In the words of Tilton and Ichikawa, “there simply was no agreement to engage in the sexual conduct in question, so we do not need deception to explain why it doesn’t amount to consent. . . . [D]eception is merely contingently connected to the problems at hand.”[84] Acts of deception concerning condom use (commonly referred to as stealthing) or involving ejaculation without prior consent likewise fall within this level.
If the deception does not reach the threshold of altering the object of the sexual act itself, then the second level of my proposed framework applies, which I call the Normative Demarcation of Sexual Autonomy. The baseline requirements for engaging with this second level are (i) that the conduct involves deception rather than mere non-disclosure (following Tolley’s differentiated approach developed in section three), and (ii) that the deception was causally determinative of the decision to consent. At this stage, the question is whether the deception concerns a condition normatively recognized as essential for consent and sexual autonomy, even if it does not reach the threshold of altering the object of the sexual act as such, and whether the exercise of sexual autonomy does not disproportionately interfere with another fundamental right. Where both criteria are met, the act of deception may also warrant criminalization.
As the subjectivist account suggests, sexual autonomy extends beyond bodily contact and the sexual dimension of an act. This is why the second level is necessary. Sexuality continues to be recognized and experienced in our societies as a central dimension of personal identity, as Kennedy observes. It is also closely linked to personal, social, and cultural factors. However, as Tolley points out, we must acknowledge that sexual autonomy is not the only fundamental right at stake. It may conflict with the other fundamental rights of those involved, such as privacy, bodily integrity, equality, and non-discrimination. In such instances, a balancing exercise becomes necessary.
A full theorization of the right to sexual autonomy is beyond the scope of this article. Nevertheless, based on various scholarly sources, I propose that this right encompasses the ability to freely choose one’s erotic and sexual experiences without being subjected to non-consensual sexual exploitation of the body, including forms of sexual objectification that are not purely physical.[85] Moreover, it requires attention to both the immediate and broader circumstances in which such choices are made,[86] as well as respect for and support of how individuals wish to develop in this sphere, while also taking into account the power asymmetries that exist in relation to gender and other factors.[87]
The normative demarcation of sexual autonomy is difficult to determine and lies at the core of the debate on the threshold for qualifying deceptions in a sexual context. Building on Kennedy’s work, I argue that the key question is whether a reasonable intersubjective understanding exists in a given social context that a particular form of deception alters sexual consent in a way that merits criminal sanction. This opens the way for a contextual and hybrid approach, one that integrates objective criteria with subjective perspectives.[88]
As discussed in level one, the object of the consented sexual act would provide a baseline. Then, through law reform processes that allow public participation, jurisdictions would need to determine which additional forms of deception should be recognized as invalidating sexual consent in a criminally relevant way. Examples discussed in the literature that would need to be weighed against other potentially conflicting fundamental rights include: (i) where the deception concerns an explicitly agreed condition, such as a promise of payment in a sexual context; and (ii) where the deception undermines the safety, intimacy, or control of the sexual practice, for example by deceiving about (in)fertility or secretly live-streaming the sexual act.
Under this framework, sexual deceptions regarding nationality, gender history, gender identity, disability, sexually transmitted infections, fertility, and other matters protected by the right to privacy would not, in most cases, be criminalized, as doing so would require imposing a highly intense positive obligation on people to disclose private information and would therefore undermine the balance between sexual autonomy and the right to privacy. Following Sharpe, this proportionality analysis requires demonstrating that the harm suffered (or risked) by the deceived person is (i) sufficiently serious and (ii) outweighs the harm imposed on the person who deceives.[89]
Some readers may wonder how this framework applies to certain cases, such as when a person living with HIV actively deceives a partner about their condition, given that this information would be protected by the right to privacy. While a full discussion lies beyond the scope of this paper, two points are worth noting. First, a significant number of people who are aware of their HIV status undergo antiretroviral treatment, and many reach undetectable viral loads, levels that are statistically considered non-existent and therefore incapable of transmission, despite the persistent stigma surrounding HIV.[90] Second, if a person knowingly deceives a partner about their status in a way that poses a concrete risk to their bodily integrity, this conduct may more appropriately be addressed as a non-sexual offense, such as bodily harm.[91]
Finally, I refer to the third level as the Zone of Criminal Normative Irrelevance. This category encompasses deceptions that are not recognized as significant enough to be examined under level two in a specific social context. While such deceptions may be significant to one of the parties involved, they fall under the principle of minimal criminal intervention because they are not regarded as serious interferences with sexual autonomy. They may thus be judged unethical and morally objectionable, yet would not justify criminal sanction. Examples include deceptions about musical tastes, hobbies, or other matters that, within the relevant socio-cultural context, are consciously deemed criminally irrelevant. The point is not to deny that these factors may be essential for a particular person, but rather to ensure proportionality in criminal law and prevent its overextension.
According to the model described, analyzing deception that vitiates sexual consent requires examining three elements:
Sexual Deception Assessment Framework
- If the deception crosses the threshold of altering the object of the sexual act (different physical touch or sexual dimension), it should be criminalized.
- If the deception falls within the normative demarcation of sexual autonomy and its protection outweighs any competing fundamental right, it should be criminalized; otherwise, it should not. Preconditions of this level: a) the conduct qualifies as deception rather than mere non-disclosure and b) the deception was causally determinative of the decision to consent.
- If the deception falls within the zone of criminal normative irrelevance, it should not be criminalized.
This model is preliminary and general in nature, and it will require further refinement. It represents an attempt to bring together and build upon different theoretical frameworks, but it does not claim to resolve all complexities. For example, exceptions may need to be developed for situations in which one party holds particular leverage over the other in creating false beliefs.[92]
Moreover, the boundaries between the levels are not clear-cut, often appearing blurred, particularly in so-called gray-area cases. It is important to note that if an act of sexual deception does not fall within the framework, it does not imply that it was not an instance of sexual violence or that it caused no harm. Rather, it means that criminal sanctions would not be the appropriate response.
V. Stress-Testing the Framework: Internet-Enabled Sex Technologies Scenarios
“[I]f one has any intuitions that some cases of deception
in the context of agreement to sexual penetration
constitute rape, the advent of teledildonics raises a
number of puzzling philosophical questions as well as
significant ethical concerns.”[93]
Sparrow and Karas put forward the importance of considering sexual consent and deception in the context of cybersex.[94] As they note, assessing whether conduct involving internet-enabled haptic devices designed for sexual or erotic stimulation (hereafter, “IEHDs”) meets the legal threshold for criminal sanctions raises complex questions about our understanding of sexual penetration, consent, and the harms associated with rape.[95] This is also precisely the reason why I chose these cases to test the Deception and Consent Assessment Framework developed in section four.
Given the scope of this paper, I do not address arguments that such interactions do not constitute sex. I adhere to the body of scholarship that asserts IEHDs enable users to engage in practices that closely resemble traditional, physically contiguous sex. Therefore, it should be understood as an intersubjective sexual interaction.[96]
The three examples I analyze come from adaptations made to those originally discussed by Sparrow and Karas.[97] The first case involves live-streaming with a teledildo under deception.[98] It constitutes a case in which A uses a penile sheath device that transfers their movements digitally to a corresponding teledildo operated by B, while B’s movements with the teledildo are likewise transmitted back to A. In other words, each device is designed to mirror and respond to the other, creating the sensation of direct physical interaction. A and B have consented on the premise that they are interacting privately, but B is simultaneously live-streaming the sexual encounter.
Using the first level of the proposed framework, we could argue that the sexual act falls right on the threshold of the object of the sexual act. The question, as Sparrow and Karas frame it, is whether the intimate and bodily nature of the invasion of privacy in a case like this, due to the deceptive live-streaming, modifies the act itself. Even if we agree that it does not reach that threshold, level two allows us to qualify it as criminal deception because the intimacy and control of the sexual practice are significantly affected, and no other fundamental right is present. The two requirements for applying level two are also met because the conduct qualifies as deception: (i) B actively generated a mistake in A by agreeing to interact privately but not doing so, and (ii) the private factor was causal to A’s consent.
A second case involves two couples using haptic devices to engage in sexual activity across distance,[99] where each person interacts exclusively with their own partner. A hacker reroutes the four devices, causing each participant to unknowingly interact with someone other than their intended partner. Using the framework developed here, we can see that the threshold of the object of the sexual act has been crossed. This transforms the act into something different because the participants are interacting with someone other than whom they consented (level one). The hacker could be considered responsible for raping all four people.
In the context of internet-enabled haptic devices, it is important to note that the category of physical touch can be illustrated without appealing to an ontological distinction in the sexual act. The parties consent to a specific form of embodied interaction characterized by physical sensations transmitted through the device. If what is transmitted differs from what was agreed upon, such as when one person believes their partner’s device is sending strokes of a certain intensity or rhythm but the actual stimulus is altered, more invasive, or otherwise different, then the consented touch and the received touch are not the same. While the act remains a sexual interaction via IEHD, the deception concerns the precise physical manifestation of touch within that act.
The third case involves a person using an IEHD to engage in sexual activity with someone who is using an identical device and claims to be equally aroused.[100] Person B describes how they are touching themselves and reacting. In reality, although they are connected to the device, they are not aroused and are not performing the additional acts they describe. Had person A known this, they would not have engaged in the same way, but the sexual act with the devices proceeds as consented. Analyzing the case through the proposed framework, the act does not alter the threshold of the object of the act because the person, physical touch, and sexual dimension remain as consented to. At the second level, there is an act of deception that is determinative to the decision to consent (person B describing being aroused and conducting additional acts). However, the deception does not seem to affect the normative demarcation of sexual autonomy, being that it does not involve an explicit agreed condition or the safety, intimacy, or control of the sexual practice in a relevant way. Therefore, I would classify this act of deception in the zone of criminal normative irrelevance and as not meriting criminalization.
VI. Conclusion
This paper discusses different frameworks that present significant arguments about when deceptions in the sexual sphere should be considered criminal offenses because they violate sexual autonomy in a criminally relevant way. Specifically, the paper acknowledges Kennedy’s emphasis on the need for socially embedded foundations to supplement understanding of the right to sexual autonomy, and Tolley’s typology, which distinguishes deception from non-disclosure and incorporates proportionality between the right to sexual autonomy, the right to privacy, and other fundamental rights. After examining additional accounts, including subjective and ontological approaches, the paper suggests using a tiered assessment tool to determine when criminalization is warranted and when deceptive conduct, though ethically questionable, should not be considered a sexual offense.
The analysis shows that different types of deception raise different questions about their legal significance regarding sexual consent. Examples involving internet-enabled haptic devices show how these distinctions can apply to sexual encounters facilitated by emerging technologies. Deception about transmitted sensations may constitute a different kind of physical touch, and some intentional misrepresentations may seriously affect sexual autonomy by compromising safety, privacy, or control. Other forms of deception may raise concerns of a different order and, although important, may not warrant criminal legal intervention.
Evidently, the framework is not exhaustive. It requires contextualization across legal systems and an awareness of the contextual social meanings associated with sex, intimacy, and technology. Some borderline cases will remain contested, and more normative and empirical research is needed to determine the best way to integrate such distinctions into legal doctrine. Nevertheless, by outlining the characteristics of qualifying and non-qualifying sexual deception, the framework advances the ongoing discussion about how the law could address deception in sexual encounters. The framework seeks to avoid the pitfalls of over- and undercriminalization by offering a principled basis for assessing consent when deception and harm are at stake.
Finally, if we are to keep criminal law as a last resort, we must consider other ways to address sexual harm. Alongside criminal law, we must pay attention to reparation, prevention, education, restorative and transformative justice. These frameworks can address not only individual instances of harm but also the structural conditions that enable them, while affirming to those harmed that their experiences and accounts are recognized and acknowledged.
* Doctoral Researcher, Max Planck Institute for the Study of Crime, Security and Law, Germany; Member, PUCP Research Group on Law, Gender and Sexuality (DEGESE) (cristina.valega@pucp.edu.pe).
[1] Chloë Kennedy, Inducing Intimacy: Deception, Consent and the Law 4 (2024).
[2] Id. at 211.
[3] Id. at 213.
[4] Rachel Clement, Deception, Mistake, Privacy and Consent: A Conceptual Framework for Resolving the “Line Drawing” Problem in Sex-by-Deception and Mistaken Sex (D.Phil. thesis, Univ. of Oxford 2018).
[5] The test case is based on the one provided by Jennifer Power et al., Smart Sex Toys: A Narrative Review of Recent Research on Cultural, Health and Safety Considerations, 16 Current Sexual Health Rep. 199, 199 (2024).
[6] Kennedy, supra note 1, at 219.
[7] Id. at 211-13.
[8] Id. at 13.
[9] Id. at 213.
[10] Id. at 24-25.
[11] Id. at 213.
[12] Id. at 212.
[13] Id. at 211-18.
[14] Id. at 212.
[15] Id. at 202.
[16] Id. at 211.
[17] Id. at 4.
[18] Id. at 206.
[19] Id. at 20.
[20] Id. at 202.
[21] Id. at 213-14.
[22] Id. at 215.
[23] Id.
[24] Id.
[25] Id. at 217.
[26] Id.
[27] Clement, supra note 4, at 228-29.
[28] Id. at 225.
[29] Id. at 163-65.
[30] Id.
[31] Id.
[32] Id.
[33] Carlos Castellví Monserrat, ¿Violaciones Por Engaño? Sobre el concepto de consentimiento y el objeto del consentimiento sexual, 2023 InDret 171, 184 (https://perma.cc/4WK8-4MM5).
[34] Clement, supra note 4, at 244-45.
[35] Alex Sharpe, Criminalising Sexual Intimacy: Transgender Defendants and the Legal Construction of Non-Consent, Crim. L. Rev. 207, 209-12 (2014).
[36] Clement, supra note 4, at 178-79.
[37] Id. at 179.
[38] Nora Scheidegger, Balancing Sexual Autonomy, Responsibility, and the Right to Privacy: Principles for Criminalizing Sex by Deception, 22 Ger. L.J. 769, 774 (2021).
[39] Clement, supra note 4, at 131-32.
[40] Tolley makes an important point in distinguishing sexual autonomy and sexual integrity, based, among other arguments, on the fact that integrity more clearly recognizes the bodily impact of sexual violence and the interface between the self and the world. A more detailed discussion of this point lies beyond the scope of the present article. However, I take note that my analysis, which is primarily grounded on sexual autonomy as the protected interest in sexual offenses, would be enriched by these considerations similar to those raised by Kennedy in her critique, where she ultimately advances authenticity as the relevant value.
[41] Clement, supra note 4, at 183-89.
[42] Id.
[43] Id. at 227.
[44] Id. at 183-97.
[45] Scheidegger, supra note 38, at 781.
[46] Clement, supra note 4, at 165.
[47] Chloë Kennedy, Criminalising Deceptive Sex: Sex, Identity and Recognition, 41 Legal Stud. 200 (2021).
[48] Laurin Tirpitz, (Sexual) Consent: Finally a Liberation for All? (paper presented at the 8th Conference of the Swiss Association for Gender Studies (SAGS), Sept. 8, 2025) (on file with author).
[49] Jonathan Herring, Mistaken Sex, Crim. L. Rev. 1, 405 (2005).
[50] Id. at 4-5.
[51] Id. at 2-3.
[52] Id. at 7.
[53] Id.
[54] Jed Rubenfeld, The Riddle of Rape-by-Deception and the Myth of Sexual Autonomy, 122 Yale L.J. 1372, 1402 (2013).
[55] Kennedy, supra note 1, at 212.
[56] Clement, supra note 4; Scheidegger, supra note 38, at 780.
[57] Clement, supra note 4, at 178.
[58] Id. at 175.
[59] Id.
[60] Sharpe, supra note 35, at 207-09.
[61] Aeyal Gross, Rape by Deception and the Policing of Gender and Nationality Borders, 24 Tul. J.L. & Sexuality 1, 26 (2015).
[62] Ivó Coca Vila, El Stealthing Como Delito de Violación: Comentario a Las STSJ-Andalucía 186/2021, de 1 de Julio y SAP-Sevilla 375/2020, de 29 de Octubre, 4 Rev. Crít. Jurisprudencia Penal 300, 300-06 (2023).
[63] Id. at 303.
[64] Id. at 304-05.
[65] Castellví Monserrat, supra note 33, at 216.
[66] Id. at 199-203.
[67] Tatjana Hörnle, The New German Law on Sexual Assault, in Sexual Assault: Law Reform in a Comparative Perspective 141, 156-57 (Tatjana Hörnle ed., 2023).
[68] Kennedy, supra note 47, at 212.
[69] Id. at 189.
[70] Scheidegger, supra note 38, at 776.
[71] John Kleinig, The Nature of Consent, in The Ethics of Consent: Theory and Practice 3, 17 (Franklin G. Miller & Alan Wertheimer eds., 2010).
[72] Robert Sparrow & Lauren Karas, Teledildonics and Rape by Deception, 12 Law Innovation & Tech. 175, 184-85 (2020).
[73] Hörnle, supra note 67, at 252-53.
[74] Valentina Pedernera, El consentimiento sexual y la punibilidad de los engaños (paper presented at the Department of Criminal Law and Criminology, Faculty of Law, Univ. of Buenos Aires, Oct. 25, 2023) (on file with author).
[75] Clement, supra note 4, at 232.
[76] Id. at 229.
[77] Kennedy, supra note 47, at 213.
[78] Castellví Monserrat, supra note 33, at 184-86.
[79] Emily C.R. Tilton & Jonathan Jenkins Ichikawa, Not What I Agreed To: Content and Consent, 132 Ethics 127, 127 (2021).
[80] Kennedy, supra note 47, at 212.
[81] Kennedy, supra note 1, at 212.
[82] It is important to note that impacts on reproductive autonomy are also relevant and may constitute an additional infringement of another protected interest.
[83] Castellví Monserrat, supra note 33, at 194.
[84] Tilton & Ichikawa, supra note 79, at 153.
[85] Boris Burghardt et al., Der strafrechtliche Schutz der sexuellen Selbstbestimmung vor nicht-körperlichen Beeinträchtigungen, 77 JuristenZeitung 502, 504 (2022).
[86] Jonathan Herring, Relational Autonomy and Rape, in Regulating Autonomy: Sex, Reproduction and Family 54, 67 (Shelley Day Sclater et al. eds., 2009).
[87] Quill R. Kukla, A Nonideal Theory of Sexual Consent, 131 Ethics 270, 285 (2021).
[88] Victor Tadros, Beyond the Scope of Consent, 50 Phil. & Pub. Affs. 430, 459, 461 (2022).
[89] Sharpe, supra note 35, at 212-15.
[90] Clement, supra note 4, at 258-61; Cristina Valega, How Should the Element of “Free Consent” in the Peruvian Rape Offence Be Understood? Legal Guidelines to Interpret Article 170 of the Criminal Code 36-37 (M.St. dissertation, Univ. of Oxford 2021).
[91] Scheidegger, supra note 38, at 782; Clement, supra note 4, at 256-71.
[92] Scheidegger, supra note 38, at 774.
[93] Sparrow & Karas, supra note 72, at 185.
[94] Id.
[95] Id. at 178-79.
[96] Id. at 179-80.
[97] Id.
[98] Id. at 197 (based on the case “Dildo Deception,” with modifications).
[99] Id. at 189 (based on the case “Crossed Wires,” with modifications).
[100] Id. at 198 (based on the case “Phone Sex,” with modifications).
Suggested Citation: Cristina Valega Chipoco, Sexual Autonomy Under Pressure: Deception and Sexual Consent in the Digital Era, 2 Mod. Crim. L. Rev. 226 (2026).