Mon, 09 May 2011

Is Misinformed Consent Rape?

Kat at was appalled by a Hornitos Tequila commercial in which it is implied that a man is about sleep with his twin brother's girlfriend while deceiving her into thinking that he is her boyfriend. She wrote the company a letter to express her displeasure.

I wrote up a comment to her post, but her WordPress blog rejected it as spam so I'll post it here:

Thanks for the thought-provoking post.  Like some of the other commenters, I
also didn't initially draw the conclusion that the scenario you describe in
the commercial was rape.  Once you made the connection, intuitively, it makes
sense to call the scenario rape.  Rape is non-consensual sex.  The woman is
consenting to have sex with her boyfriend, not his brother.  Therefore, the
brother having sex with the woman is rape.

But upon further reflection, it's not so clear to me.  The woman is giving
consent, but it is misinformed consent.  Is sex under the context of
misinformed consent always rape?

The are two aspects to the scenario that make the consent questionable:
possible intoxication and misrepresentation of the brother's identity.
Although the line where judgment is impaired through intoxication enough to
make consent non-informed may be fuzzy, most people would agree that consent is
non-informed at some point, even if the intoxication is entirely self-inflicted
and not assisted through involuntary ingestion of rohypnol or similar.
Therefore, I think the impersonation by the brother raises the more interesting
question.  So let's assume that the pair are partying with Hornitas Ginger Ale.

Is misrepresenting one's identity as a pretext for sex rape?
Suppose the guy lies and says he's Kobe Bryant and the woman agrees to sleep
with him.  Is it rape?  If not, suppose he sells her an autographed basketball
instead.  This would be fraud.  If the fraudulent basis for sex isn't rape,
what is it?

Suppose the guy proposes, promising to marry her with no intention of actually
doing so, and she agrees to sex, after which he calls off the wedding.
Suppose he does marry her with the intention of divorcing her after she sleeps
with him.
Suppose the woman lies and says she's a virgin, convincing the guy to sleep
with her.

Are these all rape?  If not, is it because the would-be victim has some
responsibility to become informed to some reasonable level before giving
consent?  In the Hornitos commercial, asking her "boyfriend" if he's really an
evil twin brother would presumably be beyond such a level of reasonableness.
What if she knew her boyfriend had a twin brother?

Finally, what if the victim gives misinformed consent with no act of
misrepresentation occurring?  Suppose the woman recognizes a man in a coffee
shop as her favorite author and goes home with him without the man being aware
of who she thinks he is.  Although I can see a case for the other scenarios
above being crimes, I can't imagine this being interpreted as a crime.

I don't have a lot of good answers at this point, but thanks again for
provoking interesting questions.

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The state is that great fiction by which everyone tries to live at the expense of everyone else. - Frederic Bastiat