Informed Consent

[SucculentChalice]

Thoughts on this as its becoming a bit of a debated topic elsewhere. Just wanting to start a discussion, not a bun fight!

The idea is that with regards to consent for sex, if you are lied to and would not have otherwise have had sex had you known the truth (e.g. someone told you they were single when they were married or your boyfriend/girlfriend told you they were exclusive when they were regularly cheating on you, etc), you did not give full consent and therefore its a form of sexual assault. Not a criminalised form of sexual assault but sa of some kind all the same. Due to the lack of informed consent.

There are actually a very few court cases on this but one that sticks in my memory is how a woman faked being male and blindfolded her willing partner to keep up with the pretence. She was jailed for 6 years I think for sexual assault, but there are plenty of other examples where people lie and deceive to get sex and its not criminalised.

I just wonder if in the future it is something we will discuss more with regards to consent.

YABU if you think uninformed consent is ok.
YANBU if you think uninformed consent is not proper consent.

Hmmm I think there’s a world of difference between someone lying about whether they are male or female or whether they have a girlfriend or not.

It’s really shitty behaviour either way. But sometimes some shitty behaviour isn’t necessarily criminal I’m afraid. Otherwise where would it stop?

Seen and been on a few threads about this recently. For me, lying about who you are on a fundamental level is where there is a real problem. So lying about your identity, sexuality.
Also if you are lying about behaviour that puts your sexual partner at risk - so cheating but still having unprotected sex with a partner who believes they are in a monogamous relationship.
These things are serious lies which affect informed consent

Didn't you post almost this exact thing the other day?

There's some case law on it if you want to see what the courts have made of it
en.wikipedia.org/wiki/Rape_by_deception#United_Kingdom

Personally lying about having a girlfriend etc comes under "shitty immoral behaviour" for me, rather than something properly considered a crime.

Maybe the example of the woman who pretended to be a man to get sex isn't the best as its derailing this slightly.

The issue is more of whether deceit negates consent and whether in future, the law might catch up. Times have already changed in many ways after all.

People can also be prosecuted for knowingly infecting others with AIDS but for other STDs? I don't think so.

@Obelisk

Didn't you post almost this exact thing the other day?

There's some case law on it if you want to see what the courts have made of it
en.wikipedia.org/wiki/Rape_by_deception#United_Kingdom

Personally lying about having a girlfriend etc comes under "shitty immoral behaviour" for me, rather than something properly considered a crime.

No, I didn't. I might have posted something vaguely about it on another post somewhere, but I don't think so?

I believe that in some Indian states, deceiving someone into pre-marital sex by saying you will get married to them is a crime, but thats also for cultural reasons and probably not heavily enforced.

I think its whether the lie changes the nature of the sex makes the difference

So lying about contraception use (deliberately, not genuine errors), male vs female, age to a certain extent, known STIs...

For me the question is "is the sex physically damaging or challenging to ones sexual identity"

STDs and aids- physically damaged health.
Using a sex toy without consent is physically damaging.
presenting as a different sex - people have a right to a sexual preference so presenting differently is damaging to ones sense of identity.

Cheating - no, but I think there should be a law around being deceitful when it results in the potential to cause a physical result the person wouldn't have consented to. Like saying you're single, have been checked for STDs or has fertility issues which leads to a decision not using contraception as this could lead to STDs, aids or pregnancy.

@Aroundtheworldin80moves

I think its whether the lie changes the nature of the sex makes the difference

So lying about contraception use (deliberately, not genuine errors), male vs female, age to a certain extent, known STIs...

I read the link provided by Obelisk which was interesting. But certainly in cases of rape we have very poor rates of conviction and the offence is dealt with badly in general with regards to cross examination of victims in court and their previous sexual history and so on. Perhaps we need to have a think about modernising the legal definitions as well.

It seems rather a grey area in this country whether lying about contraception is an offence or not. It is in Sweden, which is why Julian Assanges was charged. But its hardly ever prosecuted here. The line at which the lie changes the nature of the offence appears to be very poorly defined and subject to change, and not well understood by most people.

@RealBecca

For me the question is "is the sex physically damaging or challenging to ones sexual identity"

STDs and aids- physically damaged health.
Using a sex toy without consent is physically damaging.
presenting as a different sex - people have a right to a sexual preference so presenting differently is damaging to ones sense of identity.

Cheating - no, but I think there should be a law around being deceitful when it results in the potential to cause a physical result the person wouldn't have consented to. Like saying you're single, have been checked for STDs or has fertility issues which leads to a decision not using contraception as this could lead to STDs, aids or pregnancy.

Interesting.

So lets say if a married man pretended he was single and entered into a reasonably long relationship with a woman who believed was his girlfriend, in an exclusive relationship. Thats obtaining consent by deceit but its tolerated by society. Presumably because its so common.

Perhaps one day we will think thats not really an acceptable level of consent. I don't think we are there at all as a society by any means, obvs!

I think that you are correct in thinking that in time, laws might change to catch up with certain behaviours that we as a society to not agree with. However, I wouldn't know what changes will be made. Personally I wouldn't class claiming to be single when in reality not, as the same category of not being able to give consent as say someone who had too much alcohol is unable to give consent, however I agree with you that they are both wrong and both victims would feel hurt, if possibly in a different way.
I feel the difficulty lies in how far it can be taken. What about if someone "pretended" to have a different job, for instance, or have different hobbies. Would we then be able to say, I only went to bed with him/ her because I believed they were a dentist who enjoyed classical music? As others have said the cut off has to be somewhere, but where. Cheating can have physical consequences to the other party in the form of being at risk to stds, not being a dentist wouldn't.

I can only speak from experience. My (now ex) husband had an affair, I did not know about it, he continued to have sex with me whilst he was having the affair. When I found out about the affair (he left me for the other woman which is when I found out) I felt extremely violated. I certainly would not have consented to having sex with him had I known he was cheating on me, in fact he made it clear that he had ceased feeling any affection for me months before he actually left and when I asked why he continued to have sex with me, his reply was 'because I was horny and you were there'. It made me feel disgusting, truly horrible.

Should it be criminal - I don't know, I imagine it would be hard to prove a case. But I was sexually assaulted in my youth and him having sex with me as if I were an object, made me feel worse than that did, (although obviously the SA was horrible too) damaged me more I would say, and the sexual assault was a criminal offence. But as I say I can only speak for myself and I understand others may view things differently. To me what he did was absolutely non consensual.

@waterboats

I think that you are correct in thinking that in time, laws might change to catch up with certain behaviours that we as a society to not agree with. However, I wouldn't know what changes will be made. Personally I wouldn't class claiming to be single when in reality not, as the same category of not being able to give consent as say someone who had too much alcohol is unable to give consent, however I agree with you that they are both wrong and both victims would feel hurt, if possibly in a different way. I feel the difficulty lies in how far it can be taken. What about if someone "pretended" to have a different job, for instance, or have different hobbies. Would we then be able to say, I only went to bed with him/ her because I believed they were a dentist who enjoyed classical music? As others have said the cut off has to be somewhere, but where. Cheating can have physical consequences to the other party in the form of being at risk to stds, not being a dentist wouldn't.

Thats a good distinction. Although presumably it could be catered for by legislation. A lack of consent involving deceit/lying would also be relatively easy to prove as a lot of it takes place online so there would be a written record of the lies.

At the extreme level, people who do pretend to be entirely different people are prosecuted. So pretending to be a dentist or other wealthy businessman and using that to enter into a relationship and obtain financial advantage is sometimes prosecuted as fraud.

But sex seems to be a relative free for all!

AmyDudley I can understand why you feel that way. Its something that causes a great deal of distress and often worse, and it involves complex deceit of another person but unless it involves money the law does nothing about it.

If I had known my husband was having an affair I wouldn't have had sex with them and it wasn't because I was worried about STDs, it's because I was having sex with him on the basis we were monogamous, and I'm sure that's the case for a lot of people. I was a victim of stealthing 10 years ago and I felt betrayed so never had sex with that person again. It's only recently it has been considered sexual assault. I also know men who used to pretend they were investment bankers to have sex with women because they knew they wouldn't get a look in if the women knew they were in low paid jobs. In my opinion any time you lie to me to get me to have sex with you I haven't given informed consent. I hope the law does catch up because we make so many excuses for this sort of behaviour simply because it is common.

There were the undercover police officers who infiltrated environmental groups and had relationships with women in those groups. Their entire identities were fabricated. Those women were denied their right to informed consent and imo what those police officers did was a sexual assault but iirc the law deemed otherwise

@ImAvingOops that's interesting. It's a bit like deciding which actions, based on the notion of the greater good are acceptable and which aren't, but we the general public don't know about the options or what goes on really, and therefore don't have a say.
I

Legally the only deception that "counts" is pretending to be someone else (as in an actual person that the victim knows, rather than just pretending to be a lawyer when you're actually a builder). I'm not sure if I agree or not tbh.. it would be horrific if someone lied about having had a vasectomy/being clear of STIs, but there does need to be a line somewhere between being an arsehole and being a rapist

Laws certainly need updating, but it is a moral/criminal minefield and I am not sure where lines should be drawn. I do believe that any law should apply to all sexes, genders and sexualities equally - it would be wrong that a man could be convicted for something that a woman could not, such as lying about being on the pill or having had a vasectomy. This example is more clear for MF sex but how would you frame such a law for MM or FF sex?

Sex after lying about a) hobbies and interests b) job or wealth c) relationship status - "I agreed to sex when I thought he/she was a single, rich, eco-warrior, and they weren't" - what if they were two out of three? And what if "He/she was actually an undercover police officer"

Lying about HIV, STIs and other health issues - what about somebody who has Covid or other disease?

You would even have to consider something extremely marginal such as lying about your age, or whether you had any children. It could even stretch to more distasteful objections such as your hair colour or if you were wearing a wig "I would not have consented if I had known he/she was ginger" and consent after lies about nationality or religion.

Even lying about having a vasectomy doesn't mean it's rape currently.

www.theguardian.com/uk-news/2020/jul/23/judges-rule-lying-about-fertility-to-sexual-partner-is-not

The law absolutely needs to be changed in this regard.

I don't think telling lies is necessarily going to make consent non-valid. If we said that was the case and applied it outside of sexual issues, it's obviously going to produce crazy results.

I think the test is probably, could this lie have serious or ongoing consequences for the other individual. Pregnancy or an STI obviously yes.

Is this person really a pilot with a Mercedes - no, not really.

Pretending to be male or female when you aren't - probably not long term consequences though I think could be rather shocking to discover if it becomes clear unexpectedly. It's on the line, perhaps, between real fraud and a nasty deception.

It's interesting thought that at one time, when there was more of an expectation that sexual activity should be confined to marriage, that many of these things like identity fraud or even adultery could be illegal or grounds for divorce. So there was, I think, a link between consent and truthfulness that goes beyond what we expect for less formal liaisons.

Unless you're prepared to hike up your taxes to eye-watering levels in order to pay for the millions of new prison places then yes - YABU.

I think as a society we are now too keen to use laws to try to enforce "niceness". I would rather see our Police/courts/prisons - who are overworked to focus on the most serious issues in our society,

Maybe it would be better to teach our kids to use condoms and to never trust sexual partners blindly.

I'd also say that to call this kind of thing rape isn't necessarily the best way to describe it.

We don't consider burglary the same thing as fraud though they are both anti-social, dishonest, and a way of accessing things that a person is not entitled to. Relabeling fraud as burglary isn't really what is going to make people take it more seriously. It might however make people think burglary is less serious.

I think the law as it is has it about right and certainly wouldn't want deception as to fidelity to vitiate consent. I'd rather not have the state involved in matters of personal morality more than is absolutely necessary. As PP asked, where do you draw the line?

Deliberately or recklessly giving someone an STI can already prosecuted as GBH.

I think there's definitely room for the law to catch up... having looked at a thread this morning I looked at some of the legal cases and was really surprised that lying about contraception isn't illegal (or that it was overturned, I guess).

I think there's also a space where morality should kick in, even if the law doesn't. It's not illegal to do lots of things that it's immoral to do.

The same, I think, applies to lying to someone with the sole intent to get them to have sex with you they wouldn't have otherwise - whether it's that you're on the pill or are married or something less serious.

Consent should be freely given with all the information available to you, and if you're deliberately(1) withholding or concealing something that might reasonably(2) alter someone's decision to consent to sex - ESPECIALLY if you know it's likely to do so - then you're morally obliged to tell them or they're not giving informed consent. I don't care if that's legal or not, it's immoral not to.

(1) Deliberate as in - says they're on the pill if they're not, says they're not married etc. Not "I didn't realise I needed to tell them that I'm actually Swedish despite having no obvious accent" - intentionally decieving or withholding information

(2) Obviously, 'reasonable' does a lot of legwork here - I'd go with 'In a study of 1000 people, would the average person want to know this about someone before they had sex'. It'd be reasonable to assume most people would not want to have sex with someone married, with someone who had an STI, with someone who wasn't on contraception without a discussion first, with someone who was an undercover police officer using them for information. I'd say it's not reasonable to assume you need to disclose, e.g. natural hair colour, your football team, etc, because that's not something I think the average person would consider before having sex with someone.

They're was a bit of drama on tik tok recently where a woman with a bit of a following had started a relationship with another man with a following. I think he was poly but she had told him at the start that she wanted to be exclusive and does not consent to sex with him if he's having sex with other people and he agreed to be exclusive. But then had sex with other people behind her back knowing she'd told him she wouldn't consent to sexual activity with him if he was with multiple partners. She would have chose to let him live his poly life with consenting people and go her own way.

She made some tik toks clearly upset and feeling violated and got a very hard time. I can see the reasoning behind that.

@2boysDad

Unless you're prepared to hike up your taxes to eye-watering levels in order to pay for the millions of new prison places then yes - YABU.

I think as a society we are now too keen to use laws to try to enforce "niceness". I would rather see our Police/courts/prisons - who are overworked to focus on the most serious issues in our society,

Maybe it would be better to teach our kids to use condoms and to never trust sexual partners blindly.

I think its worth discussing as laws have changed a lot in other areas in recent years - we no longer think its acceptable to racially abuse people and can be jailed for that, and as far as I'm aware, the prisons haven't filled with frustrated racial abusers who can't control themselves.

It does seem that laws designed to encourage "niceness" seem to generally omit sex as the only protected characteristic not to be covered. And since women are generally the victims of sexual crimes that means women are being left out. For instance, the new Hate Crime bill in Scotland which criminalises "inciting hatred" potentially by discussing it in your own home leaves out sex but includes all other catergories.

And we still haven't made virtual flashing an offence, although obviously physical flashing is an offence. The law is extremely outdated with regards to that and theres no good reason for it other than a lot of men seem to think its harmless and presumably enjoy doing it.

However, in the future, things might change and who knows? It may well be illegal to deceive someone into having sex with you if you are married. That would be reasonably easily enforced, as marriage is a legal contract which is recorded on a public register, and the test could be whether the person would have had sex with the deceiver had they known the truth.