August 23, 2022

Amongst all the headline news this summer, an important story was overlooked.  In May, 19-year-old Isimemen Etute was found not guilty of murdering 40-year-old Jerry Smith.  The details of the case are:  The two met on Tinder and met, and Smith performed oral sex on Etute.  Etute later returned to Smith’s home and beat him to death. 

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Why, you might ask?

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Because, as Etute discovered, there was, ahem, more than met the eye.  Smith had posed on Tinder as a 21-year-old female physician named Angie, which is why Tinder “matched” him with Etute (18-years-old at the time).  After the sexual encounter (conducted in complete darkness at Smith’s insistence), Etute became suspicious.  He returned to Smith’s home to determine whether or not Smith was actually female.  Smith invited Etute inside, but again under cover of complete darkness.  At that time, Etute used his cell phone flashlight to illuminate Smith and, to his horror, discovered Smith was a man.  A physical fight ensued.  Etute punched Smith several times and fled the area.  He realized he had killed Smith only after police investigators told him.  Etute told them that he fought Smith because Smith was reaching for a weapon.  Investigators did find a knife under Smith’s mattress. 

Etute was found not guilty after a jury agreed that Etute acted out of self-defense.  But lost in the verdict is that Etute stated he felt “violated” at having been deceived by Smith into performing a sexual act with a person whom he reasonably thought was a female.  This raises the question:  Did Smith engage in rape by deception?  And, if so, should there be legal protections for victims, like Etute, who are tricked into sex with perpetrators who lie about their biological sex?

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Indeed, there should be such protections, but the path forward should be trod carefully.  Attempts to criminalize rape by deception have largely failed, chiefly due to the vagueness of the attempted legislation.  Laws that fail to specifically define strict parameters as to what constitutes deception, and as to what the express purpose is of the deception, are open to abuse and should not pass constitutional muster. 

The main problem lies in the universal human vice in embellishing oneself, utilizing both exaggeration and omission, during our initial social introductions and familiarizations, with the eventual goal of consensual sexual interactions and intimate relationships.  Or, as Chris Rock put it, “When you meet somebody for the first time, you’re not meeting them.  You’re meeting their representative”. 

But this doesn’t mean that rape by deception laws shouldn’t exist.  It means that there needs to be agreed and defined understandings as to when such deception crosses the line from sleazy exploitation to downright criminality.  UCLA law professor Eugene Volokh noted that, “under American law, sex for which consent is procured by a lie is generally a crime only (1) when the fraud relates to the nature of the act (i.e., the defendant claimed he was a doctor who was going to medically examine the woman’s genitals…or (2) in some states, when the defendant impersonated the woman’s husband”. 

If I meet a girl and tell her I’m a wealthy CEO (or, like Trent from Swingers, a race car driver), and we end up having consensual sex based at least partly on the impression caused by my lie, this would be a despicable act on my part.  But it isn’t a criminal act.  Because, up to a certain point, it isn’t the responsibility of the state to determine, verify, and enforce the authenticity of every statement made between individual citizens, even if these statements are in the deceptive pursuit of unearned sexual favors. 

But, as Volokh points out, there are certain circumstances where the deception crosses a legal threshold and becomes criminal if it results in consensual sex.  The threshold itself is never defined… it might not even be possible to define it… but examples are specifically circumscribed.  To this list should be amended the act of lying about one’s biological sex. 

So why should rape by deception be criminal if the deception regards biological sex, but not other factors?  Because there is something immutable and fundamental about biological sex in ways that cannot be said about status, wealth, or other social determinants.  While such societal markers can shift, as can our attraction to such markers, our preferences for a specific biological sex constitute a much deeper core of who we are as sovereign individual beings and, indeed, how we “identify”.  Finding out your sex partner lied about biological sex would seriously traumatize most people far more so than finding out they lied about their career goals or athletic prowess.