The trend towards accepting the violation of consent as the underlying wrong addressed by rape law conflicts with the almost universal rejection of rape by deception. Rape by deception is limited to fraud in the factum, however the exclusion of fraud in the inducement finds no support under a consent framework. The principal objections to the expansion of rape by deception are that it will criminalize common behavior, that rape by deception produces only minor harm, and that self-protection is a viable alternative. Analogizing from the criminalization of deception to obtain money shows that the criminal deception statutes need not be overbroad, and that self-protection is not an entirely feasible strategy. Moreover, rape by deception can in some circumstances produce the same core harms that distinguish forcible rape from other assaults. The problems raised by the critics of rape by deception can be avoided by adopting a test under which rape by deception is expanded to cover situations where a party has been made aware that the truth of an ascertainable representation relating to their person at the time of sexual intercourse is a prerequisite of consent to sexual intercourse and willfully deceives as to that representation with the intent of engaging in sexual intercourse. In recognizing the challenges surrounding such an expansion of criminalized rape by deception, a narrower test focused on core harms such as unwanted pregnancy and sexually transmitted infection is also offered.
"How to Expand Rape by Deception and Protect Consent,"
University of Massachusetts Law Review: Vol. 17:
2, Article 1.
Available at: https://scholarship.law.umassd.edu/umlr/vol17/iss2/1