Lying To Obtain Sex is Common – But Sometimes It’s a Crime

Study Shows Lying To Obtain Sex is Common – But Sometimes It’s a Crime; Some Deception May Create Civil Liability, and Sometimes Even Constitute Rape

Lying To Obtain Sex

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WASHINGTON, D.C. (November 6, 2019) – “People will do and say just about anything in order to make a connection with an attractive stranger” according to a new study, but some lying to obtain sex can result in legal liability, or sometimes even constitute a felony, notes public interest law professor John Banzhaf.

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The study, published in the Journal of Experimental Social Psychology, provides strong evidence of what many people who date already suspect: both men and women who are sexually stimulated are more likely to falsely embellish their attributes, and claim fewer sexual partners than they have actually had, in order to enhance their chances of having a sexual encounter.

As one article about the study bluntly put it, "People Lie To Get Laid."

But while most small embellishments are probably expected and not seen as very wrong, and some bigger whoppers may brand you as a cad taking advantage of another solely for sexual gratification, lying to obtain sex usually doesn't constitute a civil wrong which could lead to legal liability, much less a serious crime which could land one in prison.  But there are some exceptions to the general rule.

STDs and beyond

Telling a woman that you are a doctor to make yourself seem like a more attractive sexual partner (or "catch") is wrong but not illegal, but putting on a white coat in a hospital setting so that you can pretend to be a doctor in order to obtain permission to touch a women in intimate places is a civil wrong - a tort - and can result in legal liability for sexual battery.

Telling a woman that you will marry her if she had premarital sex with you creates no legal liability, since that kind of a lie does not undo her consent to the intercourse which results.

But somehow convincing a women that she is already married to you - a common example is a cad who takes a woman on his yacht beyond the three-mile limit, and them claims that a marriage ceremony he performed as the ship's captain made her his wife - invalidates her consent, and likely makes him liable for sexual battery.

Lawyers may try to explain these distinctions by claiming that a person's consent to sexual activity is invalid only in rare instances where there is deliberate deception which goes to the nature and quality of the invasion: in other words, it must go to the essential character of the act itself, that which makes it harmful or offensive, rather than to some collateral matter which merely operates as an inducement.

An alternative formulation of the legal rule is that the mis-representation  must cause a substantial mistake concerning the nature of the invasion of her interests, or the extent of the harm to be expected from it.

That explains why a male who obtains sex by telling a women that he has had a vasectomy and therefore cannot get her pregnant, or a women who falsely claims to be on birth control pills so that he cannot become liable for paternity and child support payments, can be found legally liable for fraud sex.

Similarly, if a man or a woman falsely claims not to have an STD in order to induce another to have intercourse, he or she can be liable because the consent obtained by fraud is not valid.

An interesting and controversial situation occurs, however,  when the lying involves a person's very identity.

Generally, a man who claims he is a Hollywood producer, a Member of Congress, or a famous person (or even the offspring of a famous person) for the purpose of persuading a women to have sex with him is not subject to liability because her consent, even though obtained by fraud, remains valid.

Rules regarding lying to obtain sex

But if he pretends to be her husband, lover, boyfriend, etc. to trick a woman into having sex, it can constitute the felony of rape by impersonation, at least in some states.

For example, some women were terrorized by someone the media termed "Fantasy Man."

He would call women he did not know; pretend on the phone to be someone they were already intimate with; and then ask them to get undressed, turn off the lights, get into bed, leave the door unlocked, put on a blindfold, and be ready to receive him.

Fantasy Man would then silently slip into their beds and proceed to have intercourse.

He was eventually caught and convicted of rape, but only because Tennessee had a statute making sex through impersonation a crime.  In other states with no such statute, having sex by impersonating someone with whom the victim is having intimate relations is not a crime.

So, says Banzhaf, while many people probably will continue to "lie to get laid," it may be seen as wrongful, but it is not a civil wrong or a crime for which they are a risk of legal trouble.

But, he says, there are some exceptions, and with attitudes about sex rapidly changing, the exceptions - lies to obtain sex where one can run into legal trouble - may well expend.

So those lying to obtain sex beware!

 



About the Author

JOHN F. BANZHAF
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D. Professor of Public Interest Law George Washington University Law School, FAMRI Dr. William Cahan Distinguished Professor, Fellow, World Technology Network, Founder, Action on Smoking and Health (ASH) 2000 H Street, NW, Wash, DC 20052, USA (202) 994-7229 // (703) 527-8418 http://banzhaf.net/ jbanzhaf@law.gwu.edu