Rape, moralism, and human rights

consent to having sex is special because it must be designed to provide all the protection that
a woman needs without burdening an innocent and natural activity in ways that interfere with
its harmless pleasures and create a risk of criminal liability for conduct that need not and
should not concern the law,

There are good reasons why they may have changed their minds. Perhaps feelings that were
lacking may have been aroused. Or a woman may have been interested but was not disposed
to say yes without first being accorded the compliment and comfort of the man's importuning.
The reluctance expressed initially may never have been revoked by a countermanding
expression, and the question then arises whether words speak louder than actions. There are
also questions of just what degree of willingness is necessary to constitute consent. Is mere
acquiescence to avoid unpleasantness enough, or does the woman have to want to have sex
for its own sake? More generally, when does perfectly acceptable persuasion become
impermissible coercion? And perhaps the most difficult question of all is when is a woman so
intoxicated or otherwise disabled that she cannot choose to give or withhold her consent.

This is an ambitious proposal. The law places strict limits on the kinds of deception that
nullify consent. If the woman is deceived about what is going on, or about who she is doing it
with, any consent she may have given is a nullity. If she is duped into thinking it is a medical
procedure rather than intercourse, or deceived into thinking that the man in the darkened
room is her boyfriend rather than someone else at the party, the man has had sex without
valid consent. The law does not require the man to tell the women the truth about whatever
might be of concern to her deciding whether to have sex,

Herring, however, is encouraged by s.76 of the Sexual Offences Act 2003 which provides
that intentional deception as to the purpose of the act creates a conclusive presumption both
that the woman did not consent to the act and that the man did not reasonably believe she did.
In the Sexual Offences Act 2003 deception as to the purpose of the act is presumably meant
to cover with greater precision of language than the common law provided the sort of case
where a singing teacher told his student he needed to make an air passage to assist her in her
singing and proceeded to have intercourse with her. Herring, however, argues that the
purpose of the act should be extended to include what the parties understood the act of sexual
intercourse to be about. If the man deceives the woman about his feelings and his intentions,
under this enlarged conception of purpose he would be deceiving her about the purpose of the
act. He is falsely representing the act as a way of expressing his feelings and expectations for
the future. Having deceived her about the purpose of the act, he has vitiated any consent she
may have given.

In Herring's paradigm case Ted tells Mary he loves her and wants to marry her in order to get
her into bed. He suggests that having sex is a way of expressing their love. Mary acquiesces,
relying on what Ted has told her. In fact Ted is an unscrupulous voluptuary who does not
love her and has no intention of marrying her. He has simply deceived her to get her to have
sex with him, and Herring thinks that there is, or should be, a good prima facie case of rape
under s.76 of the Sexual Offences Act 2003. Ted has intentionally deceived Mary about the
purpose of the sex, and therefore under s.76 it must be conclusively presumed that Mary did
not consent and that Ted did not reasonably believe she did.
The first thing to be said is that s.76 is not on the books to punish men's deception, but to
provide women with the protection they need when sex for a purpose is proposed. Consent to
sex, like consent to other activities, may be strictly qualified, and the interests of the woman
which the law protects by requiring consent remain protected against violation outside the
bounds of the consent that is given. When a woman consents to engaging in intercourse for a
particular purpose her consent is limited to sexual activity for that purpose. The purpose of an
activity is determined by what the person engaging in it intends to accomplish by it. If it is a
joint activity, as sex is, the two people engaging in it must both intend to accomplish the
same thing for the activity to have that thing as its purpose. If it is not the man's intention to
accomplish through intercourse what the woman intends to accomplish, their intercourse is
not for the purpose that the woman supposes and so she has not consented to the intercourse
they have. The singing teacher did not in fact intend to improve the singing ability of his
gullible student by having sex with her, as he said, and so there was not consent to the sex
they had. Had he truly believed the sex would open her air passages and help her singing their
sex would be for the purpose he said and so her consent would be effective. Cases such as
this are cases of sex for an ulterior purpose, an instrumental activity prompted by something
to be achieved that marks its success. Such sex stands in stark contrast to the commonplace
recreational activity that sex usually is. Sex simply for the pleasures of sex is not consented to
conditionally, and though in deciding to have such sex a woman may well have made certain
assumptions and may entertain certain expectations her willingness will not be conditional
upon those expectations being pursued through the sex.

Was Mary's consent the conditional sort with a purpose in mind, or was it consent to having
sex for the sake of sex, with no purposive strings attached? More exactly, was sex to express
love and feelings about the future really sex for a purpose, with her consent conditioned on
pursuit of such a purpose, or was it simply sex for its own sake with a romantic
embellishment that turned out, alas, not to be genuine? If it was sex for a purpose she was
deceived within the ambit of s.76 and there was no valid consent. If it was not sex for a
purpose s.76 has no application and her consent could be relied on by Ted.

Similarly Ted and Mary's love for each other can only be expressed through sex if it does in
fact exist. If Ted does not love Mary the sex they have will not be the act of love that Mary
had been led to believe. She might well have decided not to have sex with him if she had
known the truth. But her consent was not conditional upon Ted loving her, and was not
limited to the pursuit of some purpose. No doubt she was greatly influenced in her decision
by what Ted told her, but it was her prerogative to believe or to treat with a healthy measure
of scepticism what she was told. To treat Mary as a helpless victim of deception is to
withhold from her the respect to which she is entitled as a sexually autonomous person.
Woman's sexual autonomy is often championed by a declaration that ""No' means "no'." No
less important in the same cause is a recognition that ""Yes' means "yes'."

The law therefore seems quite inconsistent when it punishes those who obtain property
through deception but leaves men free to obtain sex by deceiving a gullible woman in just the
same way.

Are women in need of the law's protection against the sorts of lies that Ted told Mary, or are
women quite comfortably and securely in a position to protect themselves? Is the criminal
law needed to protect women against the disappointments and humiliations that area
consequence of their bad judgment, their gullibility, or their too trusting nature? Does the
woman suffer a loss that leaves her worse off than she would have been had she said no? It is,
after all, the protection of women, not the punishment of lying men, that is the business of the
criminal law.

Suppose Ted makes a bet with Tom that he can get Mary to go to bed with him if he tells her
he loves her and wants to marry her. Tom tells Mary what Ted is going to do. When Ted
appears, Mary listens to what he has to say and sends him on his way in no uncertain terms.
If, as Herring suggests, success through such deception would constitute rape, the abortive
version we have here is a case of attempted rape. It is like an attempt to obtain property by
deception that is frustrated when the prospective victim is informed of the scam and refuses
to part with her property. But liability for attempted rape seems absurd here, and with good
reason. Unlike the fraudster attempting to obtain property, Ted's attempt to get Mary into bed
does not threaten any genuine harm. Mary may be thankful for learning the truth and being
able to avoid the hurt of a very disagreeable episode. But she can hardly claim deliverance
from harm.

Moralism and the criminal law

My doubts about Herring's proposal go well beyond the law of rape to the foundations of
criminal jurisprudence where nagging questions remain about how the criminal law ought to
be used and what its proper limits are. His proposal is one among a number of recent
suggestions that the criminal law be used to bring about moral improvement in the way men
and women relate to each other sexually. I have serious misgivings about such a project,
which seems to me to be a serious abuse of *Crim. L.R. 226 public power. It is not personal
morality but public morality where the important issues arise. Principles of political morality
that place limits on the exercise of the powers of government to prescribe crimes and put
people in prison for committing them are at issue. It is basic human rights that provide the
strongest argument I know against making conduct criminal simply because it is morally
wrong.