Sex, Lies and Consent

ARTICLE
Sex, Lies, and Consent*
Tom Dougherty
How wrong is it to deceive someone into sex by lying, say, about one’s profession?
The answer is seriously wrong when the liar’s actual profession would be a deal
breaker for the victim of the deception: this deception vitiates the victim’s sexual
consent, and it is seriously wrong to have sex with someone while lacking his or
her consent.
I. DECEITFUL SEDUCTION
According to a popular dating website, both men and women, on aver-

age, say that they are two inches taller and earn $20,000 more than one
would expect.1 Now it may be that these are innocent errors ðthough ex-
pensive ones for tax returnsÞ, or that rich and tall people find it particu-
larly hard to meet partners in person. But in our more cynical moments,
we may suspect that this is intentional deception. Why the tangled webs?
Some may only want conversation over cappuccino, or a warm arm next
to theirs in the movie theater. But others’ aims will include sex. We might
say that these people are “lying to get laid,” if we wanted a snappy phrase.
But it would be an inexact phrase insofar as the relevant moral phenom-
* Many thanks to Elizabeth Barnes, Eamonn Callan, Nathaniel Coleman, Chiara Cor-
delli, Helena DeBres, Corinne Gartner, Dan Halliday, Seth Lazar, RJ Leland, Julia Markovits,
Kristi Olson, James Quedado, Grant Rozeboom, Debra Satz, Paulina Sliwa, Quayshawn
Spencer, Jean Thomas, Ekaterina Vavova, Kenny Walden, Caroline West, classes at Amherst
College and Wellesley College, participants in the 2011 Ethics in Society Post-doc Work-
shop and 2012 Political Theory Workshop at Stanford University, and audiences at the 2011
Rocky Mountain Ethics Conference and 2012 Australasian Association of Philosophy Con-
ference.
1. “The Big Lies People Tell in Online Dating,” http://blog.okcupid.com/index.php
/the-biggest-lies-in-online-dating/ ðaccessed on February 1, 2013Þ.
Ethics 123 ( July 2013): 717–744

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718 Ethics July 2013
enon is deception, and some lies, understood as false assertions, do not de-
ceive. In a notorious pickup joint where never a true word has been said,
the regulars will not be fooled by tall tales, sweet nothings, and puffery.
Indeed, in circumstances where lies are expected, telling the truth would
itself be deceptive. Similarly, when certain expectations are in place, si-
lence itself can be a form of communication and hence deceive.2
Deceiving someone into sex is wrong. No surprise here: mother told
us as much. But how wrong? I speculate that most people think that the
wrongness depends on the type of deception involved. Impersonating
someone’s spouse is seriously wrong but not so with run-of-the-mill false-
hoods like “I’m not fussed about mess,” “I’m 27 years old,” “I went to
Harvard,” “I haven’t had implants,” “I don’t want a relationship,” “I do
want a relationship,” and even the simple “I like you.” As Alan Werthei-
mer notes, “prevailing moral norms” are quite “permissive” with respect
to sexual deception, and so while people “may think it sleazy if a male lies
about his marital status, affections, or intentions in order to get a woman
into bed, . . . many do not think this is a particularly serious matter.”
Along these lines, Jeffrie Murphy states that if a seducer misrepresents
himself as “unusually sensitive and caring,” then this involves “a minor
kind of fraudulent misrepresentation . . . ½that is not utterly without
moral taint,” but he finds “it hard to get deeply indignant about these
cases.”3 These are criticisms—no one would be proud to have brought up
a sleazy child—but ones that are far milder than those made of serious
sexual misconduct. I will attempt to persuade you that much more severe
criticisms are in order, arguing against the following thesis:
Lenient Thesis. It is only a minor wrong to deceive another person

into sex by misleading her or him about certain personal features
such as natural hair color, occupation, or romantic intentions.
We should understand this thesis as the claim that there are some trivial
aspects of one’s identity, about which it is not seriously wrong to deceive
2. For example, if it is common knowledge that someone is expected to disclose a

sexually transmitted disease, then a failure to make any disclosure may communicate to the
other person an absence of the disease. This is not to say that all forms of concealment are
deception, though. I am currently omitting to mention the color of my eyes and hence
concealing it from you, but I am not deceiving you about it.
3. Wertheimer himself rejects these norms. Peter Westen notes that a similar view is
common concerning the related, though separate, legal issue, observing that “most judges
and commentators ½would find it normatively untenable . . . that an actor, who entices a
woman to engage in sexual intercourse by falsely telling her that he is a high-ranking
executive . . . absent other defenses on his part, would be guilty of rape.” Alan Wertheimer,
Consent to Sexual Relations ðCambridge: Cambridge University Press, 2003Þ, 193; Jeffrie
Murphy, “Women, Violence and the Criminal Law,” in In Harm’s Way: Essays in Honor of Joel
Feinberg, ed. Jules Coleman and Allen Buchanan ðCambridge: Cambridge University Press,
1994Þ, 219; Peter Westen, The Logic of Consent ðAldershot: Ashgate, 2004Þ, 200.

Dougherty Sex, Lies, and Consent 719
someone in order to get them into bed. Examples of this run-of-the-mill
deception might include deception about one’s sexual history, one’s atti-
tudes toward pets, or even how funny one finds the other person. Against
the Lenient Thesis, I will argue that even with run-of-the-mill deception,
culpably deceiving another person into sex is seriously wrong. In making this
claim, I stipulate this italicized phrase to be understood as follows. First,
the deception must concern the sexual encounter. Since each person is
an essential part of the sexual encounter, one is deceived about the sexual
encounter by deception about the other person. For example, this would
include deception about whether this person is using birth control, about
his or her profession, or about his or her mental attitudes.4 Second, the
deception must concern a deal breaker —a feature of the sexual encounter
to which the other person’s will is opposed. This requires more than con-
cealing an undesirable feature. It must be the case that the other person
is all things considered unwilling to engage in the sexual encounter, given
that it has this feature. This is a significant qualification as it lets off
the hook, for example, someone pretending to like a stranger’s umbrella
simply to strike up conversation that eventually leads to sex. ðAt least the
qualification lets the deceiver off the hook, so long as knowing the truth
about the other person’s lukewarm opinions of the umbrella would not
change the deceived person’s willingness to have sex at the crucial moment.Þ
My argument is based on the fact that not only coercion can viti-
ate consent; deception can do so too. Since coercion and deception are
Kant’s paradigms of “treating someone as a mere means,” I think of this
as a Kantian insight, though one that is acceptable to friends of other
moral theories. To illustrate, suppose you tell me that you propose ap-
plying some chestnut brown hair dye to my hair. Excited at the prospect
of brunette locks, I say that you may do so. However, you have been mis-
chievously concealing the fact that it is really pink dye. Here I only gave
you a moral permission to give my hair a chestnut color. Since the pink
color of the dye was a deal breaker for me, I did not validly consent to
what you did.5 Similarly, I will argue that when someone is deceived into
4. Some commentators have thought that promises, e.g., of marriage would not con-
stitute deception about the sexual encounter, since the promises concern the future rather
than the present sexual encounter. But this overlooks the fact that “one who makes a
promise of love and marriage to another also conveys something much more concrete—a
statement of fact about a matter of which the speaker has special knowledge. In avowing
such feelings, the speaker represents that his heart and mind are at that moment filled with
the committed intentions and deep emotions of which he speaks.” Moreover, someone’s
intentions affect the nature of the sexual encounter: casual sex is different from sex where
parties have further romantic intentions. Jane E. Larson, “Women Understand So Little,
They Call My Good Nature ‘Deceit’: A Feminist Rethinking of Seduction,” Columbia Law
Review 93 ð1993Þ: 374–472, at 466–67.
5. There is an orthogonal controversy about whether consent consists in one’s mental
attitudes or one’s communications. I will not engage in this debate here, but in passing I

sex, the deception vitiates the victim’s sexual consent. Since it is seriously
wrong to have sex with someone without her morally valid consent, de-
ceiving someone into sex is seriously wrong. Thus, my main argument
runs:
1. Having sex with someone, while lacking her morally valid consent,
is seriously wrong.
2. Deceiving another person into sex involves having sex with that
person, while lacking her morally valid consent.
3. Therefore, deceiving someone into sex is seriously wrong.
A few people may already be sympathetic to a conclusion along these
lines. For example, Wertheimer notes that “current social norms may
understate the seriousness of sexual deception”6 and suggests that sexual
consent may be vitiated by deception about one’s marital status, an affair
with a partner’s sister, one’s views on contentious moral issues like abor-
tion, one’s feelings, or one’s intentions to marry.7 But many people will
find my conclusion false, if not high-minded folly, and so I will attempt
to defend it by offering subarguments for each premise in turn. Then I
will discuss three important issues concerning my conclusion. First, it is
not the deception that is seriously wrong but the sexual act. ðTo avoid
confusion, it may help to stress that my term of art, “deceiving someone
into sex,” includes the sexual act.Þ Second, in addition to wrongness, there
is a further issue of culpability. One can commit any wrong, even serious
wrongs, in a blameless manner. So we may excuse those who act with a
would note that this example shows that if the communications view is correct, then we must
interpret someone’s communications on the basis of her underlying intentions. If I say, “you
may carry out your plans,” then the phrase “your plans” concerns what you actually plan. But
I do not properly consent because I do not intend to permit you to dye my hair pink. For
“mental-attitude” accounts of consent, see Heidi Hurd, “The Moral Magic of Consent,” Legal
Theory 2 ð1996Þ: 121–46; Larry Alexander, “The Moral Magic of Consent II,” Legal Theory 2
ð1996Þ: 165–74. For “communication” accounts, see Wertheimer, Consent to Sexual Relations;
Joan McGregor, Is It Rape? On Acquaintance Rape and Taking Women’s Consent Seriously ðAl-
dershot: Ashgate, 2005Þ.
6. Wertheimer, Consent to Sexual Relations, 199.
7. Although claiming not to have “resolved the question as to when consent to sexual
relations should be regarded as” morally valid ð213Þ, Wertheimer’s position is close to the
one I defend, as he maintains that as “a general principle, we might think that A’s deception
should generally undermine the moral and transformative power of consent because it
precludes B from being able to decide whether engaging in sex with A is in her interests or
compatible with her values. As a moral matter, I think this is basically correct” ð193Þ. Wer-
theimer leaves this judgment about sexual consent at the level of intuition, which is a
controversial dialectical ploy, given the popularity of the Lenient Thesis. I hope to buttress
this judgment by contributing arguments in its defense. However, as we will shortly see,
Wertheimer would disagree with my claim that all nonconsensual sex is seriously wrong;
instead, he maintains that the seriousness of the wrong depends on the expected harm
involved to a victim. Wertheimer, Consent to Sexual Relations.

full excuse, such as being reasonably ignorant about the deal breakers in
question. Third, we can clarify the seriousness of the wrong in question
by noting its commonalities with sex with an unwilling comatose person.
In making this argument, I will discuss general assumptions about
moral rights. Specifically, I will address such issues as the implications of
our right to bodily autonomy, the moral significance of harm, and the
nature of consent and its relationship to intentions. To foreshadow, one
issue that I will not be discussing is whether we should consider deceiving
someone into sex as a form of rape. This turns on an orthogonal debate
about whether we should apply the term “rape” to all forms of noncon-
sensual sex.8 I leave this terminological choice to the reader. My interest
is only in the substantive issue of serious wrongness. Another issue that I
will not address is the legal issue of what laws we should have in place
concerning sexual deception, since this issue brings in further practical
complications.9
Before we begin, let me briefly make a point about methodology.10
Since the Lenient Thesis is popular, I accept that my conclusion will of-
fend some common intuitions. This is always a cost whenever moral phi-
losophy engages in one of its characteristic functions of challenging con-
ventional wisdom. However, I suggest these intuitions do not deserve the
8. Catharine MacKinnon argues that rape laws should be reformed so that the concept
of consent does not feature in them. On her proposal, rape should be conceived of as forced
sex. MacKinnon, “Feminism, Marxism, Method and the State,” Signs: Journal of Women in
Culture and Society 8 ð1982Þ: 635–58, at 650, 655. However, perhaps the majority position is
that rape should be defined in terms of the absence of consent. See, e.g., Susan Estrich,
“Rape,” Yale Law Journal 95 ð1986Þ: 1087–1184, at 1095–96, 1132–33; David Archard, “The
Wrong of Rape,” Philosophical Quarterly 57 ð2007Þ: 374–93; McGregor, Is It Rape?
9. Stephen Schulhofer argues that there are evidential problems in establishing
whether someone culpably deceived another into sex, and there are difficulties in framing a
law that penalizes only seriously wrong misconduct. Additionally, he suggests that the law
may be influenced by the fact that victims of deception are partially self-deceived, believing
and not believing at the same time, and they may indeed welcome some forms of deception
as part of the fantasy of erotic experience. While these issues remain unresolved, Schulhofer
suggests that “it may be too soon to reach a judgment about the kinds of misleading com-
ments that should be considered illegal in matters of sexual intimacy. . . . It may be pref-
erable ½as a matter of law to leave to the individual the decision whether to believe, whether
to rely, and whether to assume the risk of deception by trusting the other party.” Similarly,
Wertheimer maintains that the “permissive approach to sexual deception embodied in the
law may derive in part from ‘line-drawing’ difficulties” concerning how to distinguish
“morally serious deceptions” from “puffing” or “storytelling,” and in part from “evidentiary
difficulties” in establishing what the deceiver said and whether he was intending to deceive.
In light of these points, with respect to the law, Werthemier suggests that “for ‘administrative
reasons’ it may be sensible to assign the burden of fraud to dispensers of information in the
commercial arena and to the recipients of fraud in the sexual arena.” Stephen Schulhofer,
Unwanted Sex ðCambridge, MA: Harvard University Press, 1998Þ, 154–58; Wertheimer, Con-
sent to Sexual Relations, 199–204.
10. Thanks to an anonymous reviewer for pressing me to clarify my methodology here.

status of considered judgments that are fixed points in our theorizing; in-
stead, our intuitions about sexual ethics are ripe for a philosophical cri-
tique. During recent decades, popular views of sexual morality have been
in flux. We now see that some intuitions of recent generations both failed
to take seriously enough some sexual offenses, and other intuitions were
based on overly restrictively conservative and moralistic views of sex. We
are making some welcome progress in these regards, but it would be
complacent to assume that we have gone far enough. And indeed I will
argue that we have not. Deception’s threat to sexual consent is not taken
seriously enough, and this derives partly from the fact that a concern with,
say, someone’s income is not seen as a good reason for deciding to have
sex. In light of our reasons for being suspicious of shifting views about
sexual morality, we should aim to test claims about sexual ethics against
general moral considerations outside of the sexual domain. Following this
method will show that intuitions in favor of the Lenient Thesis conflict
with more firmly held convictions about autonomy, rights, and consent.
II. WHY NONCONSENSUAL SEX IS SERIOUSLY WRONG
I will begin with the less controversial premise of my main argument—

that having sex with someone who does not validly consent is seriously
wrong. To be fully clear, the premise concerns only morally valid consent.
This is defined as the consent that someone must have in order not to
wrong the consenter by violating a right of hers. Consequently, it is the
consent that makes permissible some actions that would otherwise be im-
permissible. Morally valid consent requires more than mere agreement.
For example, agreement must be freely given, and so highly intoxicated
agreement would not count as morally valid consent. Now I imagine
many readers will be antecedently sympathetic to the claim that it is se-
riously wrong to have sex with someone while lacking her morally valid
consent. For example, Robin West describes the claim that “nonconsen-
sual sex is wrong in all circumstances, and so wrong as to be properly re-
garded as a serious crime” as a “basic moral claim.”11 Indeed, within the
literature on sexual consent, the majority position is that this claim iden-
tifies “the wrong of rape.”12 Still the thesis requires defense, since an alter-
native, harms-based approach to the ethics of sex does not make consent
foundationally important. Moreover, defending the premise will make
clear the argumentative burden that will fall on my second premise—that
11. Robin West, “Sex, Law and Consent,” in The Ethics of Consent: Theory and Practice, ed.
Franklin G. Miller and Alan Wertheimer ðOxford: Oxford University Press, 2010Þ, 221–50.
12. Estrich, “Rape”; John Gardner and Stephen Shute, “The Wrongness of Rape,” in
Oxford Essays in Jurisprudence, ed. J. Horder ðOxford: Oxford University Press, 2000Þ; Arch-
ard, “The Wrong of Rape.”

someone does not give her morally valid consent to sex when she is de-
ceived into sex.
The Rights-Based Argument

To introduce my first subargument, consider Joan McGregor’s obser-
vation that the “moral wrongness of rape consists in violating an indi-
vidual’s autonomy right to control one’s own body and one’s sexual
self-determination and the seriousness of rape derives from the special
importance we attach to sexual autonomy.”13 Here McGregor has in mind
coercive sex, but I am confident she would agree that her rationale ex-
tends to all forms of nonconsensual sex. In arguing for this claim, I make
the following assumptions that are standard within rights theory.14 We
have moral claim-rights ðhenceforth “rights”Þ over our persons and prop-
erty. These include so-called negative rights against interference: the
moral default is that others may not lay hands on, nor damage, our per-
sons or property. These rights over our persons and property consist in
more specific rights against particular actions by particular individuals.
We move away from the default by giving other people our morally valid
consent, thereby waiving some specific rights. For example, a customer
may waive her rights against a hairdresser touching her hair but not other
parts of her body. These waivers are typically revocable—at any point, the
customer can take back her consent and reimpose her rights.
The moral significance of these rights is that typically it is morally
impermissible for someone to wrong another person by infringing her
rights.15 How wrong it would be to violate a right depends on its strin-
gency. The stringency of a right against a form of behavior depends on
the importance to us of someone engaging in this behavior against our
will.16 Now controlling the sexual contact that others have with us is cen-
trally important to us. This is not to say that sex has to be an active, emo-
13. Joan McGregor, “Force, Consent, and the Reasonable Woman,” in Coleman and
Buchanan, In Harm’s Way, 236. See also McGregor, Is It Rape?
14. Here I broadly follow Judith Jarvis Thomson’s landmark account in her The Realm
of Rights ðCambridge, MA: Harvard University Press, 1990Þ.
15. Most rights theorists allow that there are usually some benefits that justify infringing
a right, although they deny that maximizing utility is always a justification. But even when
infringing is permissible, the right leaves a “moral residue” in the need for an apology and
possible compensation; ibid., 84.
16. A fully detailed explanation of rights’ stringency would take us into an orthogonal
controversy between so-called interest theories and will theories about whether rights pro-
tect our interests or our choices. My point is neutral with respect to this debate. Both sides
accept that our rights over our sex lives are more stringent than our rights over our lawns,
and that this is explained in the fact that lawn trespass is less important to us than bodily
trespass. For a recent discussion of the debate between these two theories, see Matthew H.
Kramer, N. E. Simmonds, and Hillel Steiner, A Debate over Rights ðOxford: Oxford University
Press, 1998Þ.

tionally meaningful part of someone’s lifestyle. But it is crucially impor-
tant that her sexual choices determine how her sex life goes. For exam-
ple, the “prostitute and the celibate greatly value their integrity as sex-
ual beings, even whilst they do not value the exercise of their sexuality.”17
And we can accept this point while leaving open the grounds of this im-
portance—whether we contingently find sexual autonomy important,
whether we are biologically hard wired to find it important, or whether
it has an objective importance, even if we fail to recognize this impor-
tance.18 This importance of sexual control explains the stringency of their
sexual rights.19 In light of this stringency, it is seriously wrong to violate
someone’s sexual rights. One would violate these rights unless one has
her morally valid consent to sex.
The Argument from Serious Sexual Wrongs

My second subargument operates by inference to the best explanation.
The explananda in question are the following two data. The first datum
is that it is seriously wrong to have sex with someone by means of disguis-
ing the sexual nature of the encounter or by impersonating her spouse.
Consider the following fictional examples. When naive and uneducated
Dewey Dell arrived at a physician’s seeking an abortion, it was seriously
wrong for the assistant to cajole her into sex by telling her that the ap-
propriate medical procedure was for him to penetrate her. When Milady
mistook D’Artagnan for her lover in her ill-lit boudoir, it was seriously
wrong of D’Artagnan knowingly to take advantage of her mistake to have
sex with her.20 The second datum is that it is seriously wrong to have
sex with an unconscious person against her will. For example, in Pedro
Almodóvar’s Hable Con Ella, it was seriously wrong for the caregiver, Be-
nigno, to have sex with the chronically comatose patient, Alicia. I main-
tain that the best explanation of each of these data, considered in isola-
tion from the other, is that the offenders lacked their victim’s morally
valid consent. I will call this the “Consent Explanation”:
Consent Explanation. The seriousness of the wrongs both of sex by

means of egregious deception and of sex with an unwilling uncon-
17. Archard, “The Wrong of Rape,” 391.

18. For the contingent view see Murphy, “Women, Violence and the Criminal Law”;
Scott Anderson, “Prostitution and Sexual Autonomy,” Ethics 112 ð2002Þ: 748–80, at 774; for
the biological view, see Alan Wertheimer, “Consent and Sexual Relations,” Legal Theory 2
ð1996Þ: 89–113, at 100; for the objective interest view, see Archard, “The Wrong of Rape.”
19. For a related argument, see Archard, “The Wrong of Rape.”
20. William Faulkner, As I Lay Dying ðNew York: Vintage, 1990Þ; Alexandre Dumas, The
Three Musketeers, trans. Lord Sudley ðNew York: Penguin, 1995Þ. Patricia Falk documents real
world analogues in her survey of legal cases in her “Rape by Fraud and Rape by Coercion,”
Brooklyn Law Review 64 ð1998Þ: 39–180.

scious person is explained by the fact that the victim did not validly
consent to the sex.
Since it is uncontroversial that Alicia, Dewey Dell, and Milady did not
offer morally valid consent to sex, the Consent Explanation correctly pre-
dicts that Benigno, the assistant, and D’Artagnan acted seriously wrongly.
Are other explanations at least as good? Alan Wertheimer outlines
the main alternative: “As a first approximation, we might say that the wrong-
ness of an act is a function of three factors: ð1Þ its expected or ex ante harm
to a victim, ð2Þ A’s culpability for that act, and ð3Þ the actual harmful con-
sequences of A’s act, although ð3Þ is controversial as it turns on the right
view about moral luck.”21 I will call this view the “Harm Explanation”:
Harm Explanation. The seriousness of the wrongs both of sex by

means of egregious deception and of sex with an unwilling uncon-
scious person is explained by the harm suffered by the victim.
Thus stated, the explanation includes the view that the wrongness of a
sexual offense depends only on harm; and it also includes the view that a
sexual act can be wrong simply because it is nonconsensual, but the se-
riousness of the wrong is determined by the amount of harm. Now if a
friend of the Harm Explanation considers violation of consent as a harm,
then the Harm Explanation and the Consent Explanation are consistent.
Therefore, if someone intends the Harm Explanation to be an alternative
to the Consent Explanation, then the relevant harm cannot simply be the
harm of having unwilling sex. Instead, one would have to point to harms
like physical harms, experiential harms, and ensuing psychological harms.
For Wertheimer, the crucial morally relevant type of harm is experien-
tial harm, and so sexual deception is wrong when the action “is of a type
that is likely to lead to experiential harm even though A’s action has not
harmed B in this case.”22 Consequently, Wertheimer’s view entails a view
of deceiving someone into sex that is different from the one I am defend-
ing. Wertheimer takes a hard line with deception that is likely to result in
experiential distress, but he is unwilling to judge that someone pretend-
ing to have a Harvard degree has committed a serious offense, even if his
lie has “causal impact” on the victim’s decision to have sex.23
The Harm Explanation is particularly attractive with respect to co-
ercive sex, which is typically conceived of as sex obtained by physical force
21. Wertheimer, Consent to Sexual Relations, 96. For another view that ties “moral gravity”
to “differences in degree of harm,” see Joel Feinberg, “Victims’ Excuses: The Case of Fraud-
ulently Procured Consent,” Ethics 96 ð1986Þ: 330–45, at 341.
22. Wertheimer, Consent to Sexual Relations, 203.
23. Ibid., 192.

or threats of physical harm.24 We cannot offer a proper account of the
full extent of the wrong of violent rape, unless we mention the harms suf-
fered by victims. This would appear to provide a strong motivation for the
Harm Explanation.
However, the Harm Explanation is inadequate when it comes to ex-
plaining the serious wrongness of sex with the unconscious or by egre-
gious forms of deception. The reason why is simple: as John Gardner and
Stephen Shute have noted, there need be no harm involved.25 The sex
itself may not be physically damaging. Since the victims are unaware of
having nonconsensual sex, they do not suffer experiential harms. And if
these crimes remain undetected, then the victims will not suffer psycho-
logical harms later. Nonetheless, even when entirely harmless, sex with
the unconscious and sex by means by egregious forms of deception are
still seriously wrong.
On this point, Wertheimer has argued that sex with unconscious
people is likely to be harmful.26 But I am not aware of any investigation
into whether this empirical claim about probabilities is correct. Indeed, I
am doubtful that any such investigation could be carried out, given the
obvious difficulties with getting good evidence about the frequency of
harm caused by, say, sex with the comatose. Furthermore, I doubt that
our robust judgment that nonconsensual sex with the comatose is seri-
ously wrong is based on armchair speculation about these frequencies.
Moreover, this judgment of ours is not hostage to the outcomes of an
empirical investigation into this frequency. Even if, as an act-type, non-
consensual sex with the comatose turned out to be rarely detected and
hence highly unlikely to be harmful, this discovery would not change our
minds about it being seriously wrong. And the same is true of any token of
this act-type. One could imagine a case of sex with a comatose person
where the perpetrator took precautions that virtually ensured the sexual
assault would be undetected. Nevertheless, this action would still be se-
riously wrong.27
Moreover, the Consent Explanation can accommodate the initial
motivation for the Harm Explanation—the virtual platitude that harm is
24. But why only threats of physical harm? For an argument that threats of psychologi-
cal harm can vitiate consent, see Sarah Conly, “Seduction, Rape, and Coercion,” Ethics 115
ð2004Þ: 96–121.
25. Their counterexample to the Harm Explanation is drug-induced “utterly harmless
rape perpetrated on a sexually aroused but somatic victim and leaving no trace on her
memory or body.” Gardner and Shute, “The Wrongness of Rape,” 198.
26. Wertheimer, Consent to Sexual Relations.
27. The same points could be made about deception by means of spousal imperson-
ation. However, cases of undetectable impersonation are rare, with twin impersonation
cases being the most realistic. For an actual example of twin impersonation, see Falk, “Rape
by Fraud,” 67.

an important part of the explanation of why physically coercive sex is so
bad. One can consistently hold that the nonconsensuality of physically
coercive sex is sufficient for its being seriously wrong, while maintain-
ing both that its particularly harmful nature is also sufficient for the ac-
tion to be seriously wrong and that harm makes nonconsensual sex even
worse. Indeed, as a fully general pattern, harm makes an action worse, even
though its nonconsensuality is itself sufficient for the action’s wrongness.
If a stranger trespasses in your garden, then her action is wrong in virtue
of the fact that she lacks your consent. But it is worse if she thereby ruins
the flower beds. The Consent Explanation that I advocate here does not
claim that harm never makes a moral difference. It merely maintains that
if a sexual encounter is nonconsensual, then this feature makes it seri-
ously wrong.
III. WHY THE DECEIVED DO NOT CONSENT
Before proceeding to defend my second premise—whenever someone is

deceived into sex, she does not validly consent to the sex—let me re-
hearse the dialectic. I have so far argued for the claim that having non-
consensual sex with someone is seriously wrong. By “nonconsensual sex,”
I intended sex without the victim’s morally valid consent.28 In doing so, I
postponed much of the heavy lifting of the main argument to the defense
of my second premise. This means that in this section I cannot simply
claim that on one particular conception of consent, the deceived party
does not consent to sex. I must make the case that the deceived party
does not give her morally valid consent to sex. Moreover, I suspect that few
would antecedently agree since my target thesis seems right to many:

And I speculate that people hold this view because they think that the de-
ceiver would have the victim’s morally valid consent. I will offer three sub-
arguments to the contrary.
The Argument against Sexual Moralism

My first subargument aims to remove a key source of opposition to my
second premise, by arguing that the Lenient Thesis cannot be grounded
on an acceptable account of morally valid consent. To focus our discus-
28. As such, this premise is acceptable to different theorists who operate with distinct
conceptions of morally valid consent. Thanks to an anonymous reviewer for pressing me to
address this point.

sion on run-of-the-mill deception, suppose that Chloe meets a hippie,
Victoria, on a night out. Victoria makes it clear that she wants to have
sex only with someone who shares her love of nature and peace. Con-
sequently, Chloe falsely claims to have spent time in a war zone as a hu-
manitarian, when in fact she was there on military service. When Victoria
asks whether she likes animals, Chloe omits the truth—“only to eat or to
hunt”—and pretends to love petting them and watching them in the wild.
As a result of this deception, the two spent a night together. My claim is
that Victoria did not validly consent to sex with Chloe. I expect that most
friends of the Lenient Thesis will insist that Victoria did validly consent
to sex, even if they disapprove of Chloe’s deception on other grounds.
What account of morally valid consent could support the Lenient
Thesis? A natural first thought is that Victoria consented because she was
willing to have sex and indicated as much by means of speech or behav-
ior. On this simpleminded account, if a competent person freely agrees
to sex, then she consents. But this simpleminded account is implausible.
For everyone should agree that Milady did not properly give her morally
valid consent to the nocturnal poseur, D’Artagnan. To separate the cases
of Milady and Victoria, the Lenient Thesis can only plausibly be based on
a more sophisticated account of consent that makes a fundamental dis-
tinction between different features of a sexual encounter. On this view,
someone does not validly consent to a sexual encounter when deceived
about its “core” features, such as the interaction’s not being is a genuine
medical procedure or the other person’s not being one’s usual romantic
partner. When someone is misled about these core features, then her
will is not sufficiently implicated in the act for it to be consensual.29 But
29. David Archard adopts an approach along these lines, which is based on a gradable
notion of voluntariness: “There are aspects of a sexual act—what, why, and with whom—
about which, and there are also degrees to which, a person may be misled in respect of that
act. The more completely a person is misled, the less willingly she can be said to engage in
that act, and the more wronged she is if she does engage in that act. She is wronged to the
extent that her will is not implicated in the act and it does not express her free choices” ð50Þ.
This allows Archard to maintain that false proclamations of love need not vitiate sexual
consent, on the grounds that this deception is slight enough that the will of the deceived is
still sufficiently “implicated.” But this analysis is inconsistent with Archard’s own account of
the requirement of informed consent. Here Archard states that “the person does not need
to know everything, only everything that would make a real difference to whether or not she
consented” ð46Þ. This claim is in tension with the gradable voluntariness approach since
the claim implies that all forms of deceiving someone into sex are nonconsensual. This is
because ignorance of any deal-breaker makes “a real difference to whether or not” one
consents. So if false proclamations of love lead to someone being deceived into sex, then
she does not validly consent. Her will is opposed to the encounter, given it is an encounter
with someone who does not love her, and this is enough to make it the case that she does
not validly consent. David Archard, Sexual Consent ðOxford: Westview, 1998Þ.

on the other hand, someone may validly consent even when misled about
the encounter’s peripheral features, such as the other person’s natural
hair color, occupation, or romantic intentions.30
We can see the problem with this account of consent by starting to
investigate how to draw the distinction between the core and periphery.
There are some controversial borderline cases. A Cuban spy, masquer-
ading as a dissident, marries a Florida woman but leaves her when his
operational orders dictate. A British undercover policeman starts a rela-
tionship with an environmentalist in order to infiltrate her activist group.
A Palestinian man pleads guilty to seducing an Israeli women by falsely
telling her that he was unmarried and Jewish.31 And the list goes on. Now
I do not suppose that adherents of the Lenient Thesis will have uniform
intuitions about whether the deceived person validly consents in each of
these cases. People can agree that there is an important distinction be-
tween different features of a sexual encounter while disagreeing about
how to draw this distinction. But what is important, for our purposes, is
the nature of the debate about whether someone’s religion, ethnicity, or
political values count as a core feature of the sexual encounter. This is a
debate about which features of a sexual encounter are objectively impor-
tant enough to count as one of its core features. The lack of uniformity
in people’s intuitions about the cases simply reflects their differing views
about the objective importance of religion, ethnicity, or political views
for sex.
30. This loosely parallels the legal distinction mentioned by Joel Feinberg between
“deception about what is consented to and deception about collateral matters for the pur-
pose of inducing the victim to consent.” As Rollin Perkins puts it, deception about the na-
ture of the sexual act—“fraud in the factum”—vitiates legal consent, on the grounds that
“what happened is not that for which consent was given.” But deception about collateral
matters of fact—“fraud in the inducement”—does not vitiate legal consent. Stephen Schul-
hofer notes that in practice only two forms of deception are generally recognized as being
punished by law—“fraud as to the nature of the act and impersonation of a woman’s hus-
band.” Spousal impersonation counts on the grounds that it changes the nature of the sex-
ual act into adultery. The law goes wrong, in my view, in ignoring the fact that the other
person is a constituent of the sexual act. Rollin M. Perkins, Perkins on Criminal Law, 1st ed.
ðNew York: Foundation, 1957Þ, 856; Feinberg, “Victims’ Excuses,” 331; Stephen Schulhofer,
“Taking Sexual Autonomy Seriously: Rape Law and Beyond,” Law and Philosophy 11 ð1992Þ:
35–94, at 88.
31. Rick Bragg, “Ex-Wife Is Suing Cuba over a Spy’s Deception,” New York Times, August
15, 1999 ðaccessed on February 1, 2013 at http://www.nytimes.com/1999/08/15/us/ex-wife
-is-suing-cuba-over-a-spy-s-deception.htmlÞ; Rob Evans and Paul Lewis, “Former Lovers of Un-
dercover Officers Sue Police over Deceit,” Guardian, December 16, 2011 ðaccessed on Feb-
ruary 1, 2013, at http://www.guardian.co.uk/uk/2011/dec/16/lovers-undercover-officers
-sue-policeÞ; Jo Adetunji and Harriet Sherwood, “Arab Guilty of Rape after Consensual Sex
with Jew,” Guardian, July 21, 2010 ðaccessed on February 1, at http://www.guardian.co.uk
/world/2010/jul/21/arab-guilty-rape-consensual-sex-jewÞ.

As such, the Lenient Thesis rests on an objectionably moralized con-
ception of sex.32 It assumes that some features of a sexual encounter are
morally more important than others. In this way, our moral norms about
sexual morality are skewed because of common assumptions that some
reasons are good reasons for deciding not to have sex, but other rea-
sons are not. Compare McGregor on legal norms: “It is worth speculating
on the reasons for the law’s unsympathetic reaction to victims of sexual
fraud. . . . The general lack of sympathy ½in cases such as someone im-
personating a famous fashion photographer is because it is believed that
the women acted out of ignoble motives—the desire to get into the fash-
ion industry, to have sex with famous people, and to exchange sex for
an employment opportunity.”33 Though common, this appraisal of sexual
motivations is a hangover from unacceptably moralistic views of sexuality
and has survived into more enlightened times only because it has man-
aged to avoid being subjected to proper critical scrutiny. For once we do
call it into question, I hope that you will agree that it will not do. One of
the key achievements of waves of sexual liberation has been the promo-
tion of a sexual pluralism that allows each individual to pursue his or her
own conception of the sexual good, so to speak. Appropriately valued,
sexual autonomy permits “individuals to act freely on their own uncon-
strained conception of what their bodies and their sexual capacities are
for.”34 As such, it is up to each individual to determine which features of
a sexual encounter are particularly important to her. The religion of a
sexual partner is an important part of a sexual encounter for someone if
and only if that person decides that it is. Similarly, whether or not a
partner’s views about peace and animals are an important part of Vic-
toria’s sexual encounters is down to Victoria. In light of this point, it is not
surprising that we can find counterexamples to a view of sexual consent
32. Considering sex by means of false promises, Murphy tentatively makes this point
explicitly: “We could coherently conceptualize as rape any sex obtained through fraudulent
inducement so long as the nature of the inducement itself does not provide strong evidence
that the victim does not value sexuality in the way characteristic of the norms we seek to
protect. A woman trading sex for the promise of a mink coat would reveal such deviation
and thereby reveal an interest less worthy of protection.” Murphy, “Women, Violence, and
the Criminal Law,” 222 ðitalics removed from the originalÞ. An editor of Ethics has pointed
out that there is a sense in which my own position rests on a moralized conception of sex,
insofar as I take violations of sexual rights to be serious wrongs. But to be clear, what I am
valuing here is not any particular form of sex but rather individuals’ sexual control over
whom they have sex with and how. And I remain neutral on the grounds of this value, so I am
happy to ground it in the contingent fact that people happen to find this control highly
important to them.
33. McGregor also speculates that “often what is at work is the suggestion that if these
women are so gullible, naive, and stupid, then they get what they deserve when they consent
to fraudulent claims,” McGregor, Is It Rape?, 187.
34. Stephen Schulhofer is here discussing the appropriate “legal protection of auton-
omous choice” in his “Taking Sexual Autonomy Seriously,” 70.

based around the distinction between objectively core and peripheral fea-
tures. Suppose that Jiang willingly engages in group sex with his boyfriend
Isaiah and another man, Antonio. In doing so, Jiang consents to various
kinds of sexual acts involving both men. At one point, Jiang mistakenly
thinks that he is engaged in one of these kinds of acts with Isaiah, when in
fact he is engaged in it with Antonio. Since Jiang is willing to have sex with
Antonio at this point, the sex is consensual, even though Jiang is mistaken
about a purportedly “core” feature of the encounter—whether it is sex
with his boyfriend. The reason why it is consensual is that Jiang has de-
cided that this feature is irrelevant in these specific circumstances. The
moral significance of this feature, and indeed any feature, depends on
Jiang.
This point may seem to call only for a minor revision to the view of
consent that we are considering. It might seem that the problem lies only
in positing objectively important features of a sexual encounter. Instead,
one could make this importance a subjective matter, relativizing the dis-
tinction between core and peripheral features to each person in the cir-
cumstances in which she finds herself. For example, a partner’s religion
may be a core feature to someone with religious views; but whether a sex-
ual partner is someone’s ongoing romantic partner may be a peripheral
feature to someone else on a particular occasion. Now there is nothing
inherently problematic with this relativization. Indeed, I welcome move-
ment in this direction. But the crucial point is that this relativization is
scarcely, if at all, open to a friend of the Lenient Thesis. For how are we
to distinguish between the core and peripheral features for each person?
The most principled way to do so is to distinguish the features that some-
one considered relevant to her decision to have sex from those that she
considered irrelevant.35 In the language of the law, we might say that the
core features are simply those that the victim considered “material” to her
decision to have sex. But if we take this line, then we should conclude that
someone does not consent to sex when she is deceived into sex. For, by
my stipulative definition, someone is deceived into sex when she forms
a false belief about a deal breaker: the deception conceals a feature of the
sexual encounter that makes a decisive difference to the victim’s decision
to have sex.36 To put this point in terms of our earlier example: the fact
35. In proposing a new tort for sexual fraud, Jane Larson defends this standard for the
“materiality” of a misrepresentation. “One who fraudulently makes a misrepresentation of
fact, opinion, intention, or law, for the purpose of inducing another to consent to sexual
relations in reliance upon it, is subject to liability to the other in deceit for serious physical,
pecuniary, and emotional loss caused to the recipient by his or her justifiable reliance upon
the misrepresentation.” Thus what matters, on Larson’s proposal, is whether the misrep-
resentation “substantially influenced” the victim’s decision to have sex. Larson, “Women
Understand So Little,” 462–64.
36. One of the rankings that Feinberg considers for gradations of voluntariness focuses
on the different effects that deception may have on a victim’s decision making. However, he
suggests that “a more interesting, and perhaps more useful, way of ranking the false beliefs

that Chloe is a soldier would count as a core feature of the sexual en-
counter precisely because this feature of Chloe is important enough to
Victoria to make the difference between whether or not she is willing
to have sex with her. So to resist my claim that someone fails to con-
sent whenever she is deceived into sex, someone would have to find a
different way of drawing the distinction between subjectively core and pe-
ripheral features. I am doubtful that anyone could find a systematic way
of drawing the distinction, let alone that she could adequately motivate
this way of doing so.37
The Argument from the Case of the Chihuahua

To introduce my second subargument, let us set aside sex for a moment
and consider a different example. Suppose that Aisha asks me to let her
dog into my apartment. Knowing that I loathe Chihuahuas, Aisha falsely
says that it is a Great Dane, and I hand over my key. Imagine my surprise
and fright, then, to come home to find a Chihuahua scuttling around
my floor like an overgrown furry cockroach. I say to Aisha, reasonably
enough, that this Chihuahua is not the agreed upon Great Dane. Aisha
acknowledges the difference is undeniable. But she replies that I had
consented to the arrangement since I had agreed to let her dog into my
home. Aisha’s reply will not do, I am afraid. Aisha has effectively trespassed
that might be created and exploited by a deceiver” involves distinguishing whether in-
ducements involved promises or threats and harms or nonbenefits. Feinberg, “Victims’ Ex-
cuses,” 341–44.
37. One possibility is to maintain that deception only vitiates morally efficacious con-
sent when it is particularly unexpected. In the context of advocating reforms to rape law,
Joan McGregor makes an “appeal to expectations in a potential sexual relationship” in order
to ground a legal distinction between the exaggeration, promises, and flattery that are nor-
mal, expected parts of courtship from serious cases of deception. With respect to success-
ful deception that affects someone’s decision to have sex, McGregor states that “having sex
with an imposter is not going to result in indifference on the part of the victim. On the other
hand, finding out that your lover is not exactly the person you thought—he does not have a
Harvard degree, does not come from a famous family, and is not rich—will not be met with
such disbelief and deep sense of harm.” While McGregor is here only addressing the legal
issue of which laws should be in place, there is a parallel position to be taken on the moral is-
sue: one could maintain that only unexpected deception vitiates consent. Along similar lines,
one might hold that consenting to sex under circumstances in which one has good reason
to think one may be the victim of deception is consenting to taking the risk that one is being
deceived—even about “deal-breaking” facts. Either way, an appeal to expectations is un-
promising in an account of morally valid consent because people’s expectations are simply
based on the frequency of the wrong in question, and this frequency has no intrinsic moral
significance. If spousal impersonation became sufficiently widespread, with the consequence
that victims did not react with “disbelief ” upon learning that they had been deceived, then
spousal impersonation would be no better for that fact, nor would it thereby become con-
sensual. This is a pattern that we observe across the board. In nonsexual domains, the fact
that a certain type of fraud is widespread and therefore expected does not make it the case
that a genuinely deceived victim offers morally valid consent to a con. Thanks to an editor of
Ethics for pressing me to address this point and for his or her formulation of it. McGregor,
Is It Rape?, 181–89.

upon my property. The fact that I agreed to admit some dog does not mean
that I agreed to admit that dog.38 What I consented to let into my home was
a Great Dane, and that dog was not a Great Dane.
There are superficial differences between the cases—an apartment
is not the same as a body and a dog’s entrance is not the same as sexual
contact. But the soldier and dog-owner cases are alike in all morally rel-
evant respects, which are as follows. The victim has a right to control oth-
ers’ behavior within her personal space. The deceiver would act imper-
missibly if she invades the personal space without the victim’s morally
valid consent. The victim’s will is opposed to what the deceiver in fact in-
tends. The deceiver manages to obviate this obstacle to her plan by means
of deception. This deception means that the victim’s acquiescence does
not count as morally valid consent. My aim here is to use the case of Aisha
to illustrate this pattern, so that once we are primed, we will see it in the
case of Chloe as well.
This is particularly clear if the deceived person explicitly thinks of,
and voices, the restrictions on her consent. Suppose I say to Aisha, “ You
may bring in your dog as long as it isn’t a Chihuahua—I won’t stand to
have such an unpredictable dog where I live.” If I have thought and said
this, then it is clear that I have not consented to her bringing in her Chi-
huahua. I have insisted on my moral right against having a Chihuahua in
my apartment, and so Aisha would violate this right by bringing one in.
Similarly, suppose that Victoria had explicitly said to Chloe, “I’m willing
to have sex with you on the assumption that you love animals and have
never been in the military; but I am unwilling to do so otherwise. You’re
an animal-lover and not a soldier, aren’t you?” Since Chloe knows she is
a soldier who is, at best, indifferent to animals’ welfare, she cannot rea-
sonably consider herself to have Victoria’s morally valid consent if she de-
ceives Victoria on these points. Victoria has insisted on her right against
sexual contact with a soldier who is indifferent to animals, and so Chloe
would violate this right by making such contact with her. But if this is
right, then we must reject the view that someone consents to sex when
she is deceived into sex by means of run-of-the-mill deception.
This point is enough to show that run-of-the-mill deception can vi-
tiate sexual consent. So if you also agree that nonconsensual sex is seri-
ously wrong, then you would have to reject the Lenient Thesis:

But I wish to press this line of objection further. The explicitness of the
communicated consent shoves into the face of the deceiver the fact that
38. For elaboration of this general point, see, e.g., Alexander, “The Moral Magic of
Consent II.”

she lacks the victim’s morally valid consent. However, the explicitness is
not necessary for the absence of this consent. It would also be sufficient
that the deceiver knows about the victim’s deal breakers. If Aisha knows
that I am unwilling to have a Chihuahua in my apartment, then she can-
not consider herself as having my morally valid consent when she hides
the breed of her dog. Once we become alert to this fact, we will also see
that if Chloe knows that Victoria is unwilling to sleep with soldiers, then
she also cannot consider herself to have Victoria’s morally valid consent.
Of course, knowledge of another person’s deal breakers is hard to
come by, particularly in light of the fact that someone’s reasons for hav-
ing sex can be opaque even to herself. But this knowledge also is unneces-
sary for a deceiver to lack a victim’s valid consent. For suppose that Aisha
is uncertain about whether I am against Chihuahuas in my apartment;
still, she decides to deceive me about the breed of her dog in case I might
refuse to admit a Chihuahua. Since her deception is aimed at the possi-
bility that I am unwilling to admit a Chihuahua, and she knows this pos-
sibility actually obtains, she cannot reasonably consider herself to have my
valid consent to admitting such a dog. And once more, when we are sen-
sitive to this moral pattern, we will see the same is true with respect to sex-
ual consent. Since Chloe deceives Victoria with the purpose of preventing
Victoria’s deal breakers getting in the way of sex, she cannot reasonably
take herself to have Victoria’s morally valid consent.
The Argument from a Substantive Account of Consent

My third subargument is the most controversial since it relies on a sub-
stantive account of consent. ðBut should you end up unpersuaded of this
account, let me stress that the previous two subarguments do not rely on
any particular substantive account of consent and are consistent with a
less demanding account than the one I proceed to offer.Þ
I wish to motivate my account by leaning on the theory of rights I
introduced earlier. We saw that we have ðmoral claim-Þrights over our
persons and our property, and we can waive specific rights against par-
ticular interactions with particular individuals. So what fixes the set of
rights that we waive? I suggest the following answer:
Intentions Thesis. The rights that we waive are the rights that we in-
tend to waive.39
The animating thought behind this thesis is the familiar one that rights
are intimately linked to our autonomy and agency. They mark out per-
sonal realms over which we have exclusive control, and our decisions
39. As well as waiving rights, we can also forfeit rights. This forfeiture can be uninten-
tional. For example, a would-be murderer would unintentionally forfeit her right not to be
killed if her victim acts in self-defense. Thanks to editors of Ethics for pressing me to address
this point.

determine exactly what may permissibly happen within these realms.
Having these personal realms is crucial to our leading our lives in the ways
that we should like. Fundamentally, this generates duties in other people
to respect our wills: they must respect the choices that we make about
what shall happen within these realms. If our choices are to maximally
determine the permissibility of others’ actions, then the rights that we
waive must be the rights that we intend to waive. Only this arrangement
leaves us fully sovereign over these realms.
In addition, the Intentions Thesis makes an account of consent
continuous with the standard account of promise. It is uncontroversial
that intentions fix the bounds of promises: the promises you make are
those that you take yourself to be making. If there has been some confu-
sion about a promisor’s intentions, then the promisee must accept as fi-
nal a sincere statement about what the promisor had in mind. ðThe prom-
isee may have a separate complaint that the promisor has created in her
a legitimate, but unfulfilled, expectation, but this takes us outside the eth-
ics of promise, since promises are intentionally undertaken obligations.Þ
Now consent and promise are closely related moral phenomena. By giving
consent, we release others from obligations; by making promises, we place
ourselves under obligations. We should expect these normative powers to
operate on similar lines. The Intentions Thesis delivers this result.
Next we should observe that our intentions about waivers are typi-
cally both restrictive and extensive. Our intentions are restrictive insofar
as we want to permit certain forms of behavior but not others. For exam-
ple, we let hairdressers cut our hair but not stroke our hands. Meanwhile,
our intentions are extensive insofar as there are always multiple courses
of action that could realize the permitted behavior. There are countless
permutations of snips that fall within any hairdresser’s permitted range.
Now, in general, the restrictions on our intentions are both explicit and
implicit. Consider an intention unconnected to consent. Suppose Aisha
intends to buy a puppy. She may explicitly have restricted herself to dogs
in a shelter. But there will also be implicit restrictions on her intention. If
she is like most prospective dog owners, then Aisha will not have consid-
ered the possibility that puppies can have rabies. Despite this, unless she
is quite the eccentric, she does not intend to buy a rabid puppy. This re-
striction on her intention is entirely implicit. This is a general feature of
intentions, which is thus shared by our intentions for rights-waivers: these
typically have both implicit and explicit restrictions. For example, when I
intend to waive my rights against Aisha bringing around her dog, I do
not intend to permit her to bring around a rabid dog, even if I do not
explicitly consider or mention rabies.40
40. Explicit communication is unnecessary. If Aisha tells you that she intends to get a
puppy, then you would infer that it is not the case that she wants to get a rabid puppy.
We assume that conversational participants make utterances that are informative but will
not waste everyone’s time with excessive detail. Since it is common ground that I would not

These points about intentions, in conjunction with the indepen-
dently attractive Intentions Thesis, lead us to the following account of
consent. In consenting, we intend to allow a restricted range of possi-
bilities, where these restrictions are both implicit and explicit. Any actual
interaction with our persons or property is consensual only if this inter-
action falls within this restricted range of permitted possibilities.41 On this
account of consent, if we object to events in virtue of any feature of them,
then they lie outside the restricted range of possibilities to which we are
consenting.42 If these events nevertheless occur, then “what happened
is not that for which consent was given.”43 This does not mean that we
have to achieve the impossible feat of being aware of every feature of an
event in order to consent to it. But it does mean that, were we aware of
any of the features of the event, we would have to still be happy to go
along with it. A consequence of this account is that it is not always trans-
parent to people whether they are giving their morally valid consent to
particular events in the world. But this is simply a consequence of the fact
that the features of particular events are sometimes opaque to agents. And
this is a welcome consequence: any account of consent must predict that
Milady did not give her morally valid consent to sex with D’Artagnan
even though at the time she thought she was properly consenting to what
happened.
Applying this general account of consent to sex, people validly con-
sent to sexual encounters only if they are willing to engage in these en-
counters, given all the features that these encounters have. Thus, this ac-
count of consent implies that when someone is deceived into sex, the sex
is nonconsensual. For the deception has concealed a deal-breaking fea-
want a rabid Great Dane in my apartment, I need not mention this explicitly to Aisha, when
communicating the range of my consent to Aisha. Thanks to an anonymous reviewer for
prompting me to address this point.
41. This point holds even when someone has bad reasons for refusing to have sex with
someone. We can all agree that racist prejudice is a morally abhorrent reason for any action.
Nonetheless, when racists only decide to have sex with people of their own race on the basis
of this prejudice, then they are consenting only to sex with people of their own race. When it
comes to consent, we must respect other people’s wills as they actually are, not as they ought
to be.
42. An anonymous reviewer has pointed out that one potential cost of this account of
consent is that it would require our having a grip on how to individuate events and identify
their features. But I doubt any full ethical theory can get away without ever having to in-
dividuate events, and in any event, I suggest that this cost is actually quite slight. Moreover, to
make use of this account of consent, we do not need a fancy theory of the metaphysics of
events. For the most part, we can rely simply on our intuitive judgments about what features
an event has, and ask whether someone would have been happy to go along with the event,
given that it has each of these features.
43. This principle often governs the law’s view of consent when the deception amounts
to “fraud in the factum”—deception concerning the “core nature” of the act. See n. 30.
Perkins, Perkins on Criminal Law, 856.

ture of the sexual encounter. As a result, the sexual encounter lies outside
the range of possibilities that the victim intends to consent to. Therefore,
whenever someone is deceived into sex, she does not validly consent to
the sex, even in the case of run-of-the-mill deception, for example, about
her partner’s attitudes concerning peace and animals.
I have grounded this account of consent on the basis of three inde-
pendently attractive motivations: a standard background theory of rights,
the Intentions Thesis, and a general view of intentions. All of these are
general motivations from outside of the sexual domain. They lead to an
account of consent that entails that someone does not properly consent
when deceived into sex. This result will seem counterintuitive to many,
and this is some cost to the account. However, I would deny that an in-
tuition that, say, Victoria consents to sex with Chloe deserves the status
of a considered judgment around which we frame our ethical theory. For
one, I have just offered two independent subarguments against such a
claim. For another, we should be wary of our intuitions about sexual mo-
rality, since we often observe that recent generations’ intuitions turn out
to be mistaken. And we have excellent evidence that an intuition is mis-
taken if it conflicts both with the conclusion of the Chihuahua argument
and with general considerations from other ethical domains, such as the
ones that I have just used to motivate my favored account of consent.
That said, I would find it worrying if my account of consent has
overly strong implications for the way consent functions in other aspects
of our lives, and these implications contradicted relevant considered
judgments of ours. Consider other aspects of our lives besides sex. Sup-
pose Candace asks to store antique skis in Courtney’s basement, and
Courtney agrees. Unbeknownst to both parties, the skis were once owned
by Josef Stalin. If Courtney had known about their former owner, then
she would not have let Candace store them. Despite her opposition to this
feature of the skis, are we really to say that Courtney did not validly con-
sent to their presence in her basement?44
I take this to be the most troubling challenge to my account of con-
sent. I fully accept that this account implies that Courtney does not prop-
erly consent, and it is clear that Candace behaved blamelessly. As a re-
sult, we might be tempted to say that the reason why is that Candace had
Courtney’s morally valid consent. But we must be cautious about jump-
ing to conclusions too hastily, for the correct analysis of this case is more
subtle. The feature that is priming us to judge Candace innocent is not
the existence of Courtney’s consent. Rather, it is the fact that Candace is
justifiably ignorant of the skis’ history. As such, she would have a full ex-
cuse for acting in the way she did. And we can see that it is this excuse that
is guiding our intuitions, by imagining instead that Candace does know
44. Thanks to an anonymous reviewer for pressing this type of objection.

both of the skis’ history and of Courtney’s unwillingness to store sporting
equipment once owned by bloodthirsty dictators. By making these mod-
ifications to the case, it structurally resembles the case in which Aisha tries
to sneak her Chihuahua into my apartment. As such, I hope you agree
that in this version of the case Candace does not have Courtney’s valid
consent, and that this explains why Candace acts wrongfully in storing
the skis. Now whether Courtney validly consents depends on facts about
Courtney—it depends on the nature of her mental attitudes or utterances.
Whether Courtney validly consents does not depend on Candace’s epi-
stemic state. Since Courtney does not consent when Candace knows the
skis were Stalin’s, equally she does not consent when Candace is ignorant
of this fact. As a result, we can see that Courtney does fail to properly con-
sent in the original case, and our intuitions about Candace’s innocence
are explained fully by Candace’s justifiable ignorance.
Still, we may have a related worry that is not tied to intuitions about
cases. We might worry that in taking a strict line about what each party
consents to, the account of consent forces us to forgo mutual benefits of
cooperation. Since the scope of each party’s consent is marked by their
intentions, and both parties may permissibly be ignorant about whether
an interaction is covered by these intentions, everyone may be worse off
in virtue of being unable to form common knowledge about which inter-
actions are consensual. As a result of failing to align their expectations
about consensuality, they may bear unnecessary costs or forgo possible
benefits.45
My response to this worry is threefold. First, we should take care not
to overstate the scope of this concern. On my account of consent, it will
often be possible to form these shared expectations through communi-
cation. So when consent is particularly important, as in the case of sexual
rights, each party has more moral reason to communicate about their
intentions. Admittedly, this response’s force is limited by the fact that it
would not cover cases in which each party is unable to discover whether
the interaction is consensual. This may be particularly likely in the case of
sexual consent if people are not always sure what their reasons for de-
ciding to have sex are and what their deal breakers are.46 Second, if a
party has taken all reasonable measures to establish that the other party
consents, and yet it turns out that she does not, then her justifiable igno-
rance provides her with a full excuse for moral wrongdoing. So consid-
erations of her moral ledger would provide her with no significant dis-
incentive to cooperation. Third, in the case of property rights, our choices
of laws can take into account further benefits of mutual cooperation. To
encourage this cooperation, we may prefer a property system that pro-
45. Thanks to an anonymous reviewer for prompting me to address this concern.

46. Thanks to an editor of Ethics for correcting me on this point.

tects innocent people who act in good faith from bearing costs. Along
these lines, someone might have legal protection if she has come to rely
on a nonconsensual agreement, so long as the nonconsensuality arises
from factors of which she could not reasonably be expected to be aware.
Suppose Courtney is curious about why the letters “J. S.” are engraved on
the skis and, upon investigating, comes to discover their history; conse-
quently, she objects to the arrangement as not being what she signed up
for. One legal possibility is that if Candace has come to materially rely
on the arrangement, then she may continue storing the skis, either for
the terms of the lease or for enough time for her to make alternative ar-
rangements. In order to offer an incentive for cooperation, we may pre-
fer a property rights scheme that includes measures like this that aim to
protect people who inadvertently partake in nonconsensual property
transactions. Or we may not—the debates about various property schemes
are complex, and I will not enter into them now. My point here is that if
we are particularly concerned with facilitating cooperation involving prop-
erty, then we can so mold our property laws in these sorts of ways. But
these considerations do not plausibly extend to bodily rights, since we are
unwilling to trade bodily protection off against the possible benefits of
mutual coordination and cooperation. Consequently, any acceptable le-
gal system would require anyone to desist from a bodily interaction, upon
discovery that the other party does not validly consent. As such, the rec-
tificatory duties in the event of infringing bodily and property consent
may diverge, and this is a consequence of valid bodily consent being sig-
nificantly more morally important than valid property consent.
IV. BENIGN DECEPTION, CULPABILITY, AND THE SERIOUSNESS

OF THE WRONG
So far I have defended both premises of my main argument, which to-

gether entail my conclusion that culpably deceiving someone into sex is
seriously wrong:
1. Having sex with someone, while lacking her morally valid consent,
is seriously wrong.
2. Deceiving another person into sex involves having sex with that
person, while lacking her morally valid consent.
3. Therefore, deceiving someone into sex is seriously wrong.47
47. Some people are surprised by an implication of the thesis that culpably deceiving
someone into sex is seriously wrong: two individuals can simultaneously seriously wrong each
other by mutually deceiving each other into sex. But even if this implication is unexpected,
we should accept it. For people can simultaneously wrong each other in the same way. By
analogy, consider a fistfight. Each person may lose the right to complain about the other’s
behavior. But from a bystander’s perspective, we can see that each has acted badly in

Having completed my argument, I wish now to discuss three points about
my conclusion.
First, let me stress that the serious wrong here is the nonconsensual
sex, rather than the deception in itself. Indeed, deception sometimes plays
benign, and even desirable, roles in attraction and sexual relationships.
Sarah Buss observes that in “many good human lives, the beloved falls in
love with the lover because and only because he initially gives her a mis-
leading impression of who he is and of his intentions.”48 Someone may
harmlessly misrepresent how interested she is in her date’s tales, and of-
ten one does best to conceal one’s love until it is reciprocated.49 Further,
people may want to be deceived. Sometimes, we may want “to encounter
reality indirectly, obliquely transformed” out of an enjoyment of the
magic of romance.50 And in relationships, we do not always endorse the
way that we would react to certain truths about our partners, perhaps out
of jealousy or insecurity. As a result, we may prefer that they lie to us so as
not to incite these reactions in us.
These points are well taken. However, I deny, and Buss does not
suggest, that these points legitimize deceiving someone into sex. For no
matter how benign the deception in other respects, if it vitiates someone’s
sexual consent, then this leads to seriously wrong misconduct. The pos-
sible benefits of romance and relationships would not justify having non-
consensual sex with someone. So if someone deceives another person for
the sake of their mutually falling in love, then the price she will have to pay
is abstinence until she is sufficiently confident that the false beliefs are not
part of the other person’s reasons for having sex. Moreover, I speculate
that much of the harmless or welcome subterfuge that features in at-
traction and relationships does not hide deal breakers and hence does not
lead to deceiving people into sex. If someone would still choose to have
sex with another person, were the veil of ignorance lifted, then her sexual
consent is unaffected by the deception.
Second, in addition to the serious wrongness of acts, there is the
further issue of agents’ culpability for performing wrong acts. I am as-
suming the standard view of culpability, which includes deliberately do-
ing wrong, being aware that one does wrong, and taking an excessive risk
of doing wrong. Thus someone is culpable for serious wrongdoing if she
deliberately aims to deceive another person into sex, if she foresees that
her actions will lead to her deceiving another person into sex, and if she
recklessly takes an excessive risk of deceiving someone into sex. These
assaulting the other. We do not judge their behavior as morally neutral simply because the
other is treating them in the same way.
48. Sarah Buss, “Valuing Autonomy and Respecting Persons: Manipulation, Seduction,
and the Basis of Moral Constraints,” Ethics 115 ð2005Þ: 195–235, at 220–21.
49. Ibid., 221.
50. Ibid., 226.

points about culpability are very familiar. But I want to briefly discuss the
implications of recklessness for our topic. Suppose that Chloe lied about
her career simply to avoid the conversation taking an awkward turn that
might disrupt her smooth pickup technique. Still, Chloe should realize
that she was taking a risk that Victoria’s belief that Chloe was an animal-
loving humanitarian ends up a crucial part of her reason for consenting
to sex. Indeed, when sexual partners deceive each other about them-
selves, there is frequently some risk, however small, of this deception
leading to nonconsensual sex. This is because of the epistemic limita-
tions people face. It is hard for people to know what other people’s rea-
sons are for deciding to have sex. Further, deception “is a pervasive pos-
sibility in sexual encounters and relationships” in light of “the peculiarly
implicit nature of sexual communication,” which makes miscommuni-
cation likely when “endearments and gestures of intimacy are not used
to convey what they standardly convey.”51 Whether taking these risks
counts as recklessness depends on how much risk it is acceptable to take.
So how much of a risk may we take of deceiving another into sex? This is a
difficult applied question, and I doubt that we can give it a precise answer
in the abstract. Instead, the best we can do is to characterize the types
of consideration to which we should attend when analyzing particular
cases. On one side are the costs to a policy of avoiding deception. Honesty
can come at a loss of privacy. Additionally, if people cautiously forgo
sexual encounters, and it turns out that these would have been consen-
sual, then they miss out on any benefits of these encounters. On the other
side is the seriousness of the moral wrong of nonconsensual sex. We would
have to weigh these considerations on a case-by-case basis.52 But given the
seriousness of the moral wrong, I suspect that we will often judge that
people have strenuous duties to reduce the risk of deceiving another
into sex, and it would be hard to justify the status quo in which “society,
wisely or unwisely, generally expects ½potential victims to assume the risk
of misrepresentation in intimate relationships.”53
Third, a comparison between deceiving someone into sex and hav-
ing sex with an unconscious person is enlightening because they are
51. Onora O’Neill, “Between Consenting Adults,” Philosophy and Public Affairs 14
ð1985Þ: 252–77, at 269.
52. This touches on an important issue that is linked to our main topic of deception:
concealment. This raises the question of what duties people have to inform their sexual
partners about themselves to avoid false beliefs about deal breakers. But this question is a
nuanced one. Toward the goal of mutually consensual sex, some epistemic labor may be
required on both sides. If someone has a highly idiosyncratic sexual preference—say, he
only wants to sleep with people whose star sign is Pisces—then it may be his responsibility to
disclose this preference, rather than his partner’s responsibility to inquire into whether he
has this preference.
53. Schulhofer, “Taking Sexual Autonomy Seriously,” 54.

wrong for the same reason. Suppose that someone took highly effective
precautions to ensure that his chronically comatose victim suffered no
physical harm and never found out about his having sex with her. Why is
his action wrong? My answer is twofold: the victim has a stringent right
against sexual contact, which is based in the importance of her sexual
autonomy, and he has violated this right by having nonconsensual sex
with her. I have argued that these features are present when someone de-
ceives another into sex. And so to avoid equating these cases, one would
have to find a sufficiently morally important disanalogy. What could this
be?
We can put to one side several irrelevant differences. First, there will
be several counterfactual claims true of a victim of deception, such as “if
the victim had inquired further, she might have avoided being attacked,”
and we might think that similar claims could not be made about an un-
conscious victim.54 This points to the deceived victim’s ability to avoid the
fraud. However, some deception will be virtually undetectable, and some
unconscious victims also have the ability to avoid attacks. If a victim passes
out drunk, then one could say that “if the victim had drunk less, she
would have avoided being attacked.” But this does nothing to diminish
the wrong she suffers. And this is a fully general point: wrongs are not
diminished because victims could have avoided them. Stranger rape is
no less bad simply because the victim could have avoided it “by never
leaving home without a ðreliable!Þ army.”55 Second, one might claim that
victims of deception ought to have avoided deception, presumably in the
prudential sense of “ought.” But again, a similar point can be made of
some unconscious victims. It is prudent not to drink so much that one
passes out around people who are liable to have sex with unconscious
victims. So there is no disanalogy and again, this point about prudence
does not diminish the wrong perpetrated by offenders. Third, one might
claim that some victims of deception can be complicit in their decep-
tion and thereby bear partial responsibility for it. For example, if Victoria
wants to believe that Chloe is a humanitarian animal lover, then this may
make her less skeptical than she would ordinarily be. However, this point
would do nothing to improve our view of deceiving people into sex when
the victims are not complicit in any way. And more importantly, some-
one’s complicity does not diminish the other person’s wrongdoing. We
can see this if we consider cons. Suppose Carlo runs a Ponzi scheme.
Some of his victims are entirely innocent of any negligence on their parts;
other victims believe Carlo partly because they want to believe him. I
54. Thanks to an anonymous reviewer for stressing the need for me to address these
putative disanalogies.
55. Judith Jarvis Thomson, “A Defense of Abortion,” Philosophy and Public Affairs 1
ð1971Þ: 47–66, at 59.

hope you agree that Carlo acts just as badly when he cons either type of
victim. What this shows is that even if we grant for the sake of argument
that some victims are responsible for their deception, this does not di-
minish the wrongdoing of the perpetrator. In the words of David Archard,
we must avoid the “danger of having a zero-sum picture of responsibility
for a crime. This picture imagines that the more that a person contri-
butes by her behavior or negligence to bringing about the circumstances
in which she is a victim of a crime, the less responsible is the criminal for
the crime he commits. A crime is no less unwelcome or serious in its ef-
fects, or need it be any the less or malicious in its commission, for occur-
ring in circumstances which the victim helped to realise.”56 This general
point applies as much to sex as to Ponzi schemes.
There is, however, at least one morally important difference be-
tween the two types of nonconsensual sex. Victims of unconscious sex are
likely to suffer a greater dignitary harm than victims of deceptive sex,
insofar as the former victims are likely to feel that they have been more
violated than the latter victims. However, I suggest that this is simply a
consequence of the fact that the latter victims mistakenly accept the
Lenient Thesis. Many people who are deceived into sex do not consider
themselves to have suffered a serious moral wrong. In light of this, they
do not consider themselves to be gravely disrespected. However, if it
were more widely realized that the Lenient Thesis is false, then this dif-
ference between unconscious and deceptive sex would disappear. Both
sets of victims would then realize that they have suffered a grave affront
to their sexual autonomy. So there is a morally relevant difference, but
one that would evaporate if the correct view of sexual deception were
more widely accepted. Are there other differences beside? I cannot think
of any, but for reasons of space, I will not pursue this inquiry further
here. Instead, I will simply make the provocative suggestion that if ev-
eryone rejected the false Lenient Thesis, then deceiving someone into
sex would be in the same moral ballpark as having sex with an unconscious
person. If others wish to reject this rough moral equation, then I pass the
challenge to them to find further moral differences.
V. CONCLUSION
To summarize, I have argued that deceiving someone into sex vitiates her
consent to sex, and it is seriously wrong to have sex without someone’s
valid consent to sex. Therefore, deceiving someone into sex is seriously
wrong. The seriousness of this wrong is widely recognized when the de-
ception involves, say, spousal impersonation. But it is wrongly overlooked
in the case of run-of-the-mill deception.
56. Archard, Sexual Consent, 139.

My conclusion may appear prudish or reactionary. But I would resist
this characterization. Instead, it is the inevitable consequence of placing
the proper value on our sexual autonomy. Ultimately, my stance is mo-
tivated by the thought that someone has the right to decide down to the
very last detail what comes into sexual contact with her body, and this is a
particularly important right. For example, Victoria’s rights over her sex
life extend to deciding the interests in animals or peace of the people she
sleeps with, or for that matter their incomes or favorite colors. The Le-
nient Thesis goes wrong because it objectionably trivializes some of these
choices. But the truth is that it is Victoria’s prerogative to choose not to
have sex with someone in virtue of any feature of her whatsoever, and
“taking away the power to consent to sexual relationships, to control this
most personal part of our domain, is an extremely grave and serious in-
jury.”57 Since deceiving someone into sex involves disrespecting her sex-
ual choices, my thesis calls for more autonomy in our sex lives. As such,
we should not see it as a prudish or reactionary thesis but a liberating one.
57. McGregor, “Force,” 235.


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ARTICLE

Sex, Lies, and Consent*

According to a popular dating website, both men and women, on aver-

Ethics 123 ( July 2013): 717–744

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Lenient Thesis. It is only a minor wrong to deceive another person

2. For example, if it is common knowledge that someone is expected to disclose a

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II. WHY NONCONSENSUAL SEX IS SERIOUSLY WRONG

I will begin with the less controversial premise of my main argument—

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The Rights-Based Argument

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The Argument from Serious Sexual Wrongs

Consent Explanation. The seriousness of the wrongs both of sex by

17. Archard, “The Wrong of Rape,” 391.

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Harm Explanation. The seriousness of the wrongs both of sex by

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III. WHY THE DECEIVED DO NOT CONSENT

Before proceeding to defend my second premise—whenever someone is

Lenient Thesis. It is only a minor wrong to deceive another person

The Argument against Sexual Moralism

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The Argument from the Case of the Chihuahua

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Lenient Thesis. It is only a minor wrong to deceive another person

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The Argument from a Substantive Account of Consent

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44. Thanks to an anonymous reviewer for pressing this type of objection.

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45. Thanks to an anonymous reviewer for prompting me to address this concern.

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IV. BENIGN DECEPTION, CULPABILITY, AND THE SERIOUSNESS

So far I have defended both premises of my main argument, which to-

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56. Archard, Sexual Consent, 139.

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57. McGregor, “Force,” 235.

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