A.1 Specific and General Consent

The first distinction important to understanding coercion and deception is between specific and general consent.^{Footnote 27} Specific consent often refers to an agreement of an agent to a well-specified act that involves a large degree of specificity. By contrast, general consent usually applies to a wide variety of possible scenarios or situations. In giving general consent the agent agrees to do something the exact nature of which will be determined in the future, according to the circumstances. Although specificity is a matter of degree and it might be difficult to determine where consent switches from general to specific,^{Footnote 28} this distinction is important because contemporary criminal law considers consent to sexual relations valid only if it is highly specific. Firstly, consent to sexual relations ought to be provided to a specific individual and not to the group to which he or she belongs. Even if a tourist consented to sexual relations with a local man because she wanted to experience sexual relations with a local, other local men cannot take this consent as applicable to them. Secondly, consent is also specific in temporal terms and consent given in the past cannot be construed as on-going consent that can be invoked in order to justify ignoring expressions of lack of consent in the present.^{Footnote 29} Common Law had been influenced for years by Canon Law, according to which, by entering into matrimony, the wife provides her on-going consent to having sexual intercourse with her husband, which remains in effect throughout their marriage. The grim outcome of this construction was the utter disregard of the rape of wives by their husbands.^{Footnote 30} Unfortunately, Common Law systems took quite a while to remove the fetters of this Canonic construction,^{Footnote 31} but nowadays there is little doubt that the consent required for sexual relations is highly specific also in temporal terms. Finally, as Assange illustrates, specific consent to a particular type of sexual relations (protected, in that case) cannot be assumed to include consent to other types of sexual relations (unprotected in particular). The consent required for sexual relations is therefore highly specific.

Sometimes courts might infer consent from other previous instances of consent,^{Footnote 32} and one might argue that this practice shows that courts regard consent given in the past as general and hence applicable to the event in question. It is important, though, to distinguish between substantive and evidential questions. Such inferences need not be based on the understanding that the previous instance of consent was general consent, applicable to future events. Rather, the previous instance of specific consent can be regarded as providing relevant evidence supporting (even if not conclusively proving) the finding that there was another instance of specific consent during the event pertinent to the complaint. In R v. A, for example, the defence submitted that the complainant’s consensual sexual relations with the accused several weeks prior to the event in question was relevant evidence supporting the finding that the sexual relations pertinent to the complaint was also consensual.^{Footnote 33} Similarly, as in Assange, the complainant’s consent to one type of sexual relations (protected) can be regarded as relevant evidence that she consented to another type of sexual relations (unprotected). Such inferences are evidential and this paper takes no stance on the questions of whether such evidence is indeed relevant or should be used in court.^{Footnote 34} The important point is that these inferences seek to resolve an evidential dispute about the presence of specific consent, and hence using such evidence does not imply that courts consider general consent valid. Interestingly, while regarding evidence of past consent as relevant is considered by many to be problematic,^{Footnote 35} regarding evidence of past lack of consent as relevant seems straightforward. For example, if the complainant repeatedly refused sexual relations with the accused in the past, this seems relevant evidence supporting the prosecution’s claim that she did not consent to sexual relations in the event in question. To take another example, it is difficult to dismiss as irrelevant evidence that the complainant had told the accused at some point prior to the event that she would never consent to unprotected sexual relations. Yet if evidence of past lack of consent is relevant, why is evidence of past consent not relevant as well? Be that as it may, these evidential matters are beyond the scope of this paper. The important point is that even if either type of evidential inference is legitimate, it is still possible to regard consent to sexual relations as valid only if it is highly specific.

A.2 Consent, Refusal and Absence of Consent

Other distinctions relevant to coercion and deception are between consent, refusal and absence of consent. Consent is an active and conscious resolve of an agent to engage in a given course of action and refusal is an active and conscious resolve not to engage in a proposed course of action. Distinct from both consent and refusal, absence of consent is the lack of an active and conscious resolve of the agent either to engage or not to engage in a given course of action.^{Footnote 36} In other words in a state of absence of consent the question of whether to consent or refuse is not consciously resolved by the agent (for example, because this question has never crossed their mind). Consider an example not related to sexual relations. A flight attendant offers a passenger a drink from a jug the attendant believes to contain coffee. The passenger considers the offer and resolves to have a cup of coffee, but to their equal surprise, what comes out of the jug is tea. Clearly, the passenger did not consent to have tea, as she in fact resolved to have coffee. But neither does this scenario indicate that during the event itself the passenger resolved not to have tea. Perhaps the question of whether she is interested in having tea never crossed her mind. If she did not maintain an active resolve to have or not to have tea, the passenger was in a state of absence of consent.

Consent, refusal and absence of consent should not be confused with expressions of consent, refusal and absence of consent, or with the absence of such expressions respectively. In referring to consent, refusal and absence of consent this paper refers to the mental states of the agent rather than to any external behaviour which expresses such mental states.^{Footnote 37} The passenger’s resolve to have coffee should be distinguished from her expression of consent (“Yes, please”). If she failed to express her desire to have coffee clearly, it does not mean that she did not resolve upon consenting. In the context of consent to sexual relations the possibility of gaps between the relevant mental state and its expressions is particularly troubling. This is because refusal or absence of consent which were mistaken for consent might lead to a situation in which the victim experienced sexual relations without consenting while their partner was unaware of that fact and hence, arguably, lacked the mens rea required for the relevant sexual offence.^{Footnote 38} This gap between the mental states and their expression therefore poses a serious challenge to criminal law, and perhaps reveals an unresolved tension between the need on the one hand to protect victims from sexual relations to which they did not consent, and on the other to convict only those perpetrators who knew that their partner did not consent.^{Footnote 39} However this challenge is addressed, it is outside the scope of this paper. This paper focuses on the mental state of consent rather than on its expressions because the difference between coercion and deception is not a result of any gap between the mental state and its expressions. Rather, cases of deception raise the question of whether the victim’s mental state during the event constitutes an element of the actus reus in the relevant sexual offence.

Separating the mental state and its expression is particularly important in the context of threats. For example, if a perpetrator points a gun at the victim’s head and forces them to declare that they consent to sexual relations, the victim’s statement does not necessarily indicate that they resolved upon consent. One possibility is that while the victim expressed consent, their actual mental state was one of refusal. Another possibility is that the victim had a mental state of consent (as they chose to agree to the sexual relations in preference to risking their life), but their consent was induced by illegitimate means.^{Footnote 40} The distinction between (morally/socially/legally) legitimate and illegitimate means of inducing consent to sexual relations is tricky, since some means are clearly legitimate (expressing honest feelings), others are clearly illegitimate (pointing a gun), and many are somewhere in between in one or more senses of legitimacy (threatening to divorce, denying money, manipulating feelings and so on). Wherever one draws the line between legitimate and illegitimate means, this is a separate question from that central to this paper. While this line is between coercive and consensual sexual relations, this paper focuses on the distinction between coercive and deceptive sexual relations.

The distinction between refusal and absence of consent should not be obfuscated by the similarity of their legal implications. In many cases, and for certain reasons, the law treats the absence of consent as refusal for practical purposes. For example, in contract law, absence of consent to a contractual offer leads to similar outcomes as explicit refusal to accept that offer, and the offerer’s claim that silence implies consent is usually not recognized.^{Footnote 41} Even when refusal and absence of consent produce the same legal implications, the similar treatment is better explained as a result of certain normative considerations rather than by the law’s regarding these mental states as identical. Evidence that the law acknowledges this distinction can be found in cases in which absence of consent is treated as consent rather than as refusal. For example, in some medical situations, a refusal of a certain treatment is honoured if made, but if the patient loses their capacity to consent without expressing such a refusal in advance, their absence of consent produces the same legal implications as consent.^{Footnote 42} Whether absence of consent should be treated similarly to consent or refusal is hence a normative question and should be considered in the light of the objectives the law seeks to achieve, and in consideration of matters such as who the agent is, what they are asked to consent to, and so on. This paper considers whether absence of consent in the context of sexual relations should have the same legal implications as refusal.

A.3 Actual and Counterfactual Consent

Actual consent is a mental state that the agent has at the time of the event itself. By contrast, counterfactual consent is the mental state that the agent would have had at the time of the event if some of the circumstances had been different from what the agent perceived them to be.^{Footnote 43} One important category of counterfactual consent consists of cases of absence of actual consent in which it is possible to determine what the agent’s mental state would have been had they been required to resolve upon consent or refusal at the time of the event. In the flight attendant example, the passenger actually consented to have coffee, but was in a state of absence of consent to having tea. However, if the passenger always prefers tea to coffee when offered the choice, then she would have consented to have tea had she known that the drink in the jug was tea rather than coffee. In that sense she had counterfactual consent to have tea.^{Footnote 44}

A similar distinction can be drawn between actual and counterfactual refusal. Counterfactual refusal (and consent) has a broad extension, since the agent’s perception might differ from reality in a broad range of aspects, be it as a result of a misrepresentation or an innocent mistake (either theirs or the other party’s). The broad extension is particularly important in the context of sexual relations, since the communication in this context is typically less explicit and detailed than in other contexts (e.g., commercial). Yet, that this concept has a broad extension is not a flaw in the analysis. This is because it should not be assumed that all sexual relations conducted in spite of counterfactual refusal are wrongful or criminal.^{Footnote 45} Which counterfactual refusal renders the sexual act wrongful or criminal is a normative question which no analysis of the concept of consent can purport to answer.^{Footnote 46} This analysis seeks to answer a different question: what distinguishes two types of wrongful sexual relations, coercive and deceptive.

Counterfactual refusal should be distinguished from regret (or a change of heart). Regret is an attitude that the agent forms after the event, disapproving of the consent that they formed at the time of the event and desiring that they had not formed that consent.^{Footnote 47} In the context of sexual relations, counterfactual refusal should be distinguished from situations in which one of the partners regrets the sexual relations to which they gave their actual consent during the event.

Counterfactual states of mind can be understood as a property of either the actual or a reasonable victim. Treated as property of the actual victim, the question becomes whether the actual victim would have consented or refused had they known the truth, regardless of how bad their subjective reasons are. For example, if a partner misrepresents themselves as 1.8m tall despite being 1.79m and the actual victim would not have consented had they known that, there is counterfactual refusal even if the actual victim’s refusal is based on some ludicrous superstition about people below 1.8m. Alternatively, counterfactual states of mind can be understood as a property of a reasonable victim, which turn on the question of what information would have changed the victim’s actual state of mind had they been reasonable. It then becomes possible to conclude that the victim was in a state of counterfactual consent (or refusal) even if the actual victim would have refused (or consented) had they known the truth. This paper does not presuppose either understanding since this question affects the distinction between deceptive and consensual sexual relations, while this paper focuses on the distinction between deceptive and coercive sexual relations.

A.4 Scope of Disagreement

We may now consider again consent to sexual relations which was obtained by deception and analyse it in light of the distinctions proposed above. Cases of deception are characterized by two additive features. The first is the presence of actual consent to the course of action proposed by the perpetrator, consent which was specific rather than general and, crucially, matched the misrepresentations made by the perpetrator. If these representations were real, the case would not have been one of deception and would probably not have constituted an offence at all. In Assange, for example, had the sexual relations been protected, no offence would have been constituted. The second feature of cases of deception is counterfactual refusal to the course of action proposed by the perpetrator. Again, this counterfactual refusal is specific rather than general and its specifics match the circumstances as they actually were.^{Footnote 48} Had the victim known the truth, they would have refused to engage in that activity.^{Footnote 49}

Cases of deception include two broad categories. In the first, during the event the victim formed actual refusal to the proposed course of action with the specifics matching reality, but the misrepresentations made by the perpetrator led them to consent to another proposed course of action, the specifics of which match these misrepresentations. For example, in Assange, it was alleged that the first victim had formed (and expressed) actual refusal to unprotected sexual relations and consented only to the protected sexual relations (which Assange misled her to believe she was having). In the second type, during the event the victim was in a state of actual absence of consent with regard to the proposed course of action with the specifics matching reality. For example, perhaps in Kashur the victim did not resolve to consent or refuse to engage in sexual relations with an Arab, because the thought that Kashur was an Arab did not cross her mind. There is counterfactual refusal in this type of case as well, because had the complainant known the truth, she would have resolved upon refusal.^{Footnote 50}

One might argue that the feature of counterfactual refusal is redundant because the very fact that the victim’s actual consent was obtained as a result of the perpetrator’s misrepresentations suffices to constitute a sexual offence. Similarly, one could argue that cases of deception should be analysed as consisting of actual consent alone, though invalid since it was obtained using illegitimate means. Such approaches would supposedly promote desirable goals in respect of victim rights and sexual autonomy. Firstly, it is important to emphasise that the points made in the following sections can be rephrased to fit these approaches (by discussing “invalid actual consent” instead of “counterfactual refusal”). These points seek to articulate the special wrongfulness of coercion and hence they do not hinge on any particular analysis of cases of deception. More to the point, such approaches might result in problematic outcomes since a sexual offence might be constituted even if the victim would have consented had they known the truth about the misrepresentations and that they were being deceived. In light of these problematic outcomes this paper considers only cases of deception which include the feature of counterfactual refusal.^{Footnote 51}

To summarize, cases of deception are based on the premise that the victim consented to the specific sexual relations as they were represented to them (otherwise the case would become a straightforward case of coercion). Cases of deception thus raise the following question: what sexual offence, if any, ought to be inferred from coupling (1) the perpetrator’s misrepresentations which led to the victim’s actual consent to the sexual relations as they were presented to them, and (2) the victim’s counterfactual refusal to these sexual relations as they really were?

B.1 The Special Wrongfulness of Coercion

The coercer’s conduct is especially wrongful because of its cruelty and dismissiveness. The first wrongmaking feature of coercion is the coercer’s cruel disregard of the victim’s suffering, despite its being “in their face”. Being in a state of actual refusal, the victim of coercion is likely to suffer during the event and to express their suffering in one way or another.^{Footnote 53} The coercer, faced with the victim’s suffering, is nevertheless not moved by it in the way that they ought to be moved (namely, to stop causing the victim’s suffering). Being faced with the suffering one causes to another human being and yet remaining unmoved by it is sheer cruelty. Kekes defines cruelty as “the disposition of human agents to take delight in or be indifferent to the serious and unjustified suffering their actions cause to their victims”.^{Footnote 54} Consider, for example, a visitor to a slaughterhouse who devours a raw steak while being shown how cows are tormented and then painfully butchered. Even if one believes that vegetarianism ought to be adopted by everyone, regardless of whether they are shown the cows’ suffering, it is difficult to ignore the cruelty that the visitor’s conduct exhibits. There is hardly a clearer way to convey how little the visitor cares about the cows and their suffering.^{Footnote 55} The coercer seems even crueller than the slaughterhouse visitor because unlike the visitor who is not moved by the suffering someone else causes, the coercer is not moved by the suffering they cause and have the power to stop. This paper thus argues that the coercer’s conduct is more wrongful than the deceiver’s because the coercer’s conduct includes the cruelty of being faced with and remaining unmoved by “the serious and unjustified suffering their actions cause to their victims”.^{Footnote 56}

The same cannot be said of deception. The deceiver obtains the victim’s consent by using deceptive means and, as a result, avoids the need to face the victim’s suffering. While deception might cause the victim significant suffering, this suffering would appear only after the event, once the victim finds out the truth.^{Footnote 57} Deception does not include the cruelty of being faced with and remaining unmoved by the victim’s suffering and thus it is not as wrongful as coercion. This difference between coercion and deception remains valid even if the victim of deception eventually suffers as much as the victim of coercion.^{Footnote 58} It also remains valid even if the deceiver imagines the deceived’s suffering when they find out the truth because the deceiver’s conduct still does not manifest the cruelty of being faced with and remaining unmoved by the victim’s suffering. Lastly, it remains valid even when the victim explicitly tells the deceiver beforehand that they would have refused to engage in sexual relations had the deceiver lacked a certain property which the deceiver misrepresented themselves as having (e.g., being rich, sexually healthy, etc.). While such a deceiver has stronger evidence to support the fact that the victim had counterfactual refusal, they are not confronted with the victim’s suffering and do not cruelly disregard it during the event.

The second wrongmaking feature of coercion is the coercer’s dismissive disregard of the victim’s negative reactive attitudes. According to Strawson, we tend to ascribe great significance to the existence and content of negative attitudes such as resentment and anger when engaging in moral judgments of responsibility and guilt.^{Footnote 59} This paper switches the focus from the attitudes themselves to the way in which the perpetrator responds to them. It argues that part of the special wrongfulness of coercion lies in the coercer’s disregard of the victim’s negative reactive attitudes. Being in a state of actual refusal, the victim of coercion is likely to form and express during the event attitudes such as resentment and anger toward the coercer for making them engage in a course of action against their will. In response to another person’s resentment, one ought to cease the conduct in question, check the reason for the resentment, explain oneself, and, if the resentment is justified, offer an apology and perhaps reparation. Instead, the coercer proceeds with the coercion and hence fails to respond to the victim’s negative reactive attitudes as they should. A constitutive part of being human is the capacity to form and express reactive attitudes that ought to influence how others treat this human being.^{Footnote 60} Coercion is more wrongful than deception because of its dismissiveness: the coercer’s failure to respond to these attitudes signifies a failure to treat the victim as a human being in that sense.

Deception lacks this wrongmaking feature. The victim of deception does not form and express negative reactive attitudes during the event, because their refusal is counterfactual rather than actual. Surely the victim is likely to form and express negative reactive attitudes once they find out the truth, but during the event these attitudes are not yet formed and expressed and therefore they cannot be responded to. As a result the deceiver’s conduct does not manifest the same dismissive disregard of the victim’s negative reactive attitudes as the coercer. Deception is therefore not as wrongful as coercion. As before, this remains true even when the victim explicitly tells the deceiver beforehand that they would have refused to engage in sexual relations had the deceiver lacked a certain property which the deceiver misrepresented themselves as having.

The special wrongfulness of coercion is evident in the context of sexual offences. While both coercive and deceptive sexual relations consist of engaging in sexual relations without the victim’s consent, coercive sexual relations are more wrongful because of the wrongmaking features of coercion. Firstly, coercive sexual relations are cruel because the coercer is faced with and unmoved by the suffering they cause to the victim by coercing them to engage in sexual relations against their will. Secondly, coercive sexual relations are dismissive because the coercer disregards the negative attitudes that the victim forms and expresses toward the coercer while being coerced to engage in sexual relations against their will. In contrast, since the deceiver obtains actual consent to sexual relations by using deceptive means, they are not faced with their victim’s suffering and negative reactive attitudes. Therefore, while deceptive sexual relations are non-consensual and thus wrongful, they are not as wrongful as coercive sexual relations.^{Footnote 61}

B.2 Types of Coercion

Coercive sexual relations are more wrongful even when the victim does not accompany their actual refusal with attempts of resistance or explicit verbal statements. However the victim expressed their actual refusal, the victim is likely to manifest suffering even if they do not accompany their refusal with resistance or verbal statements and hence the coercer is still faced with and remains unmoved by the victim’s suffering. If the coercer proceeds with the sexual relations while aware of the victim’s actual refusal,^{Footnote 62} they do so while cruelly disregarding the victim’s suffering. Furthermore, negative reactive attitudes are expressed independently of attempts of resistance and they too can be expressed non-verbally. Therefore, even when the victim does not resist or refuse verbally, the coercer still proceeds with the coercion while dismissively disregarding the victim’s negative attitudes. More generally, while the form and intensity of the victim’s expressions of suffering and negative attitudes might affect the degree of the wrongfulness of coercive sexual relations, they do not change the coercive nature of these relations or the type of wrongfulness they involve.

The argument applies also to cases of coercive threat in which the victim consented to the sexual relations after facing a choice between consenting and suffering the harsh consequences of refusing (recall the example of consent obtained at gunpoint). As noted above, it is questionable whether the victim’s expression of consent reflects being in a state of actual consent or actual refusal.^{Footnote 63} Either way the victim is still likely to suffer and to form and express to the coercer attitudes such as resentment and anger (recall Tosca’s reactions to Scarpia’s “offer” to pardon Cavaradossi in exchange for sexual relations).^{Footnote 64} Therefore, even if the victim eventually expressed their consent in response to the coercive threat, it does not undermine the wrongmaking features of coercion.

The argument also applies to coercive yet non-violent sexual relations and sheds new light on the discussion of the necessity of violence or force in some sexual offences. The traditional requirement of force in the offence of rape has been rightly criticised by feminist scholars as reflecting hegemonic stereotypes about sexual offences (e.g., the offender is a stranger taking the victim by surprise, refusal ought to include resistance, etc.).^{Footnote 65} As the previous paragraphs show, the argument of this paper also applies to non-violent cases of coercive sexual relations: it applies to refusal unaccompanied by resistance and to coercive threats which are not necessarily violent. This paper thus explains why violence is not necessary to understanding the wrongfulness of coercive sexual relations. However, the paper also explains why violence is a core case of coercion. The use of violence highlights the existence of the wrongmaking features which render coercion especially wrongful. By using violence, the coercer exacerbates the victim’s suffering and bluntly disregards their negative attitudes. While violent coercion manifests these wrongmaking features to a large degree, these features appear also in non-violent cases of coercion. Therefore, coercive sexual relations are more wrongful than deceptive sexual relations even when the coercion is not violent.^{Footnote 66}

By contrast, the argument does not apply to cases in which the victim is unconscious, such as in ‘rape drug’ cases, in which the perpetrator, without the victim’s knowledge, inserts into the victim’s drink a chemical substance and engages in sexual relations with the victim while they are drugged. Such cases do no exhibit the wrongmaking features of coercion because an unconscious victim does not suffer and does not form and express negative reactive attitudes during the event. However, such cases might involve wrongmaking features that neither coercive nor deceptive sexual relations involve. For example, and perhaps similarly to cases of incapacity (minors and mentally ills), the special wrongfulness of engaging in sexual relations with an unconscious person might stem from the perpetrator’s exploitation of the victim’s special vulnerability.^{Footnote 67} ‘Rape drug’ cases are paradigmatic examples of such wrongfulness because it was the offender themselves who induced the victim’s vulnerability. The important point is that if sexual relations with an unconscious victim are (at least) as wrongful as coercive sexual relations, and/or more wrongful than deceptive sexual relations, this is not because of the wrongmaking features of coercion but because of some other wrongmaking features.^{Footnote 68}

B.3 Possible Objections

Now that the argument is laid down it is necessary to discuss possible objections. The first is that deception also has typical wrongmaking features that coercion lacks, thereby making it (at least) as wrongful as coercion. One such possible feature is that deception makes the victim an accomplice in their own plight by exploiting and harnessing the victim’s own will against themselves.^{Footnote 69} Another possible feature is that while coercion leaves the victim with the dignity of knowing the truth, the deceiver does not dignify the victim with knowing what the situation is really like. Lastly, the victim might blame themselves for the part they played in their own suffering or despise themselves for being so stupid as to fall prey to such deception.

Isolating the features of wrongmaking that deception has and coercion lacks and explaining why they render deception as wrongful as coercion is more difficult than it seems. Starting with making the victim an accomplice, it is unclear that it is a feature that deception has and coercion lacks because coercion too can involve making the victim assist in bringing about their own plight (e.g., Sophie’s choice). It is also unclear in what significant sense the victim of deception is more of an accomplice than the victim of coercion. Neither victim was a willing accomplice since both refused, either actually or counterfactually. It is thus necessary to explain why the deceived’s refusal being counterfactual rather than actual makes them more of an accomplice in a way that renders deception as wrongful as coercion. As for dignifying the victim with the truth, it is unclear what kind of dignity there is in knowing how little the coercer cares about the victim’s suffering and negative attitudes. It is thus unclear how the notion of dignity can be invoked to explain why deception is as wrongful as coercion.^{Footnote 70} Lastly, that the victim blames themselves is unfortunately not typical of deception alone, since victims of coercion also tend to blame themselves for getting into a situation that enabled the coercion to begin with or for not doing enough to stop the coercion once it started.^{Footnote 71}

Moreover, whatever this feature is and however it renders deception wrongful, it is also necessary to establish that this feature outweighs or at least compares with the wrongmaking features of coercion. Not only does deception have to involve some wrongmaking features that coercion lacks: these features also have to outweigh or at least balance the coercer’s complete disregard of the victim’s suffering and negative attitudes.

More generally, the claim that deception is (at least) as wrongful as coercion has counterintuitive implications. It is counterintuitive that violently forcing a suspect to disclose information is no more wrongful than tricking them into disclosing it to a cellmate who is an informer. One might retort that it is the violence that makes this type of coercion more wrongful than deception. The objection would then boil down to arguing that deception is as wrongful as non-violent coercive threats, while conceding that any form of violent coercion is more wrongful than deception. However, threatening to distribute intimate pictures of the suspect all over the internet unless they reveal the information also seems worse than deceiving them into believing that their cellmate is a friend.

The second objection is that this paper’s argument is not persuasive when applied to cases of deception in which the victim did not consent to anything sexual at all.^{Footnote 72} For example, it could be argued that cases in which consent to sexual relations was obtained under the guise of medical treatment are as wrongful as cases of coercion.^{Footnote 73} It seems, however, that the aggravated wrongfulness of this type of deception results from some unique features. For example, the aggravated wrongfulness of such deception might stem from the fact that these cases involve breach of the special trust owed by a medical doctor, healer and the like.^{Footnote 74} Alternatively, perhaps such deception is more wrongful than deception as to the specifics of the sexual relations because sexual relations differ categorically from any other type of interpersonal relations (for example, due to the intimacy they require).^{Footnote 75} Be that as it may, even if such deception is as wrongful as coercion, this does not mean that this paper’s argument does not apply to these cases. If such deception is as wrongful as coercion, it is only because of its unique features, which form a separate consideration that applies in addition to this paper’s argument. Lastly, some of these cases are not cases of deception at all but rather cases of coercion in disguise. For example, when a medical doctor tells a patient that her fatal disease will not be cured unless she has sexual relations with him, this is not merely deception, but more importantly, an illegitimate threat. This is because the doctor’s conduct is similar to that of coercers who use a gun they know to be made of plastic.^{Footnote 76} In both cases, the sexual relations are obtained by coercion, albeit the perpetrator deceives the victim about the efficacy of its means. These are not cases of deception which are as wrongful as coercion, but rather cases of coercion per se.

C.1 The Meaning of Coercion

Even if coercion is more wrongful than deception because of the abovementioned features, the question is why this special wrongfulness of coercion should affect the type of offence suitable for criminalizing either coercive or deceptive sexual relations. The first step in answering this question is to explain how the special wrongfulness of coercion relates to the moral assessment of the action of coercion, the harm it causes to the victim and the coercer who performs it. An action is distinguishable from both its consequences and the mental states of the agent carrying it. Arguably, not only the effects of an action and the agent who performs it are susceptible to moral assessment, but also the action itself. For example, insulting someone could be wrongful even if the target of the insult is not offended and even if the insult was not intended (while the agent might be excused, their action might still be wrongful). The action itself is also open to moral assessment because its significance goes beyond the significance of its consequences and the mental states of the agent performing it. The significance of the action itself is termed here “the meaning of the action”.^{Footnote 78} Just as the action itself is separate from its consequences and the intentions of the agent carrying it out, so the meaning of an action is also separate from the meaning actually perceived by the recipient of the action and from the meaning that the agent intended to convey.^{Footnote 79}

The special wrongfulness of coercion changes its meaning because coercion reflects on the relationship between the perpetrator and the victim in a different way from deception. Both the coercer and the deceiver seek to engage in sexual relations with the victim with or without the victim’s consent, and both their actions lead to non-consensual sexual relations. Nevertheless, the actions of coercion are cruel by nature because the coercer’s conduct manifests indifference to the victim’s suffering. The coercer’s actions also add insult to injury by ignoring not only the victim’s suffering, but also their ensuing resentment and anger.

By changing the meaning of the action, the special wrongfulness of coercion affects the type of action which comprises the conduct element of the crime. The special wrongfulness of coercion has distinct external manifestations that are separate from both the agent’s mental states and the consequences of their action. A hypothetical bystander, who knows nothing about the agent’s mental states or lacks a full account of the consequences of the agent’s action, can still notice that the coercer is not moved by the victim’s suffering and negative reactive attitudes in the way they ought to be moved. Coercive sexual relations require a separate offence from deceptive sexual relations because the special wrongfulness of coercion changes the meaning of the non-consensual sexual relations, thereby affecting the conduct element of the crime and thus its actus reus.

C.2 The Harm of Coercion

One might insist that the type of offence used to criminalize an action should be determined by the harm it causes. Hence the only way to show that coercive sexual relations should be criminalised using an offence separate from and graver than that used for deceptive sexual relations is to establish that coercive sexual relations cause greater harm. A key question for such a position is what counts as harm: does it consist only of physical and psychological harms suffered by the victim (hereafter “experiential harms”)^{Footnote 80} or can it also include more abstract categories such as autonomy infringements or right violations (hereafter “non-experiential harms”).^{Footnote 81} Some theories reject the abstract notion of non-experiential harm and insist that the way an action is criminalized should be determined by the experiential harm it causes to the victim.^{Footnote 82} On such a theory one might hold that the important question for determining the suitable type of offence is whether coercive sexual relations cause greater experiential harm than deceptive sexual relations.

While this paper does not purport to settle this empirical question, focusing on experiential harm is unlikely to yield results which would disprove the claim that coercive and deceptive sexual relations should be criminalized with separate offences. True, if victims of deceptive sexual relations typically suffer similar experiential harm to that of victims of coercive sexual relations, then this similarity in experiential harm could be used to argue that deceptive sexual relations should be criminalized with the same offence as coercive sexual relations. However, substantiating the claim that the experiential harm is similar faces two challenges. Firstly, in order to establish this claim with empirical research, it would be necessary not only to assess the harm of deceptive sexual relations, but also to compare it in detail with the harm of coercive sexual relations, which often takes severe physical and psychological form. Somewhat surprisingly, there has been no empirical research either to establish or disprove this claim, or even a general reference to the distinction between coercive and deceptive sexual relations.^{Footnote 83} Moreover, to the extent that it is possible to draw conclusions from non-sexual offences to sexual offences, empirical research on property offences shows that coercion is more harmful than deception.^{Footnote 84} Secondly, the wrongmaking features of coercion discussed above can also explain some of the harm typically caused by coercive sexual relations, in addition to other harms caused by the sexual relations being non-consensual or by the coercive means themselves (e.g., violence). By ignoring the victim’s suffering and resentment the perpetrator forces the victim to confront the cruel and dismissive way in which they are treated, thereby causing them additional harm.^{Footnote 85} This additional harm, which can easily be overlooked, ought to be included in the comparison as well. For these two reasons substantiating the claim that deceptive sexual relations should be criminalized with the same offence as coercive sexual relation by focusing on the experiential harm they cause is harder than it looks.

Furthermore, it is worth noting the general difficulties of focusing on experiential harm, particularly in sexual offences. It seems hard to accept that in general the way wrongful actions should be criminalized is determined solely according to the experiential harm they create. For example, when a perpetrator steals money from the victim’s bank account, the stealing is criminalized as any other action of stealing, even if the victim did not notice that the money was missing. Such theories are no less problematic in the specific context of sexual offences. For example, in the context of rape, Gardner discusses a case he labels “pure rape”, in which the victim (and everyone else) remains oblivious to the fact that she was raped while unconscious, and persuasively argues that such a wrongful action is still rape.^{Footnote 86} If the type of offence should be determined only by the experiential harm that the criminalized action creates, then such a case could not be criminalized at all because no experiential harm resulted from the perpetrator’s actions.^{Footnote 87} Moreover, since in many cases the deception is not exposed and thus not experienced, establishing that coercive and deceptive sexual relations should be criminalized with the same offence by referring to experiential harm is particularly difficult, and this is admitted even by its proponents.^{Footnote 88}

By contrast, if harm can be non-experiential, one could argue that coercive and deceptive sexual relations should be criminalized using the same offence because they both cause similar non-experiential harm. For example, one might hold that coercive and deceptive sexual relations cause a similar non-experiential harm because both consist of using the victim only as a means to some other end rather than as an end in themselves. Herman, for example, draws on Kant when referring to coercion and deception as the two most egregious instances of illegitimate manipulation of the will.^{Footnote 89} According to Herman, deception infringes upon the will in a manner as grave as coercion, because it exploits the victim’s dependence on information provided by the deceiver, information the victim needs in order to exercise their judgment freely and rationally. Exploiting this dependency transforms deception into a clear instance of using another person as means rather than an end. Following Herman’s equalisation of coercion and deception in using the victim as means, one might argue that coercion and deception create similar non-experiential harm and thus should be criminalized using the same offence. A similar objection can be made by employing the concept of sexual objectification. One could argue that coercive and deceptive sexual relations should be criminalized with the same offence because both consist of treating the victim as a sexual object whose purpose is to satisfy the perpetrator’s desire rather than as a human being with feelings and desires of their own.^{Footnote 90} Lastly, one could argue that the same offence should be used to criminalize coercive and deceptive sexual relations because both violate similar rights of the victim.

However, just as it is difficult to accept that experiential harm is the sole consideration which should determine the types of offence suitable for criminalizing coercive and deceptive sexual relations, it is also difficult to accept that with regard to non-experiential harm. This is because non-experiential harm is also unlikely to exhaust all the distinctions which should determine the offence with which a certain wrongful action is criminalized. Starting with autonomy, in many if not all offences, the perpetrator uses the victim only as means to other ends: a robber uses the robbed only as means to obtaining their belongings, a pimp uses the prostitute only as means to obtaining profit and a brute assaults others only as means to dominating them. Similarly, most types of sexually-offensive conduct consist of sexual objectification: rape, sexual assault, non-consensual sexual touching and sexual harassment all treat the victim as an object whose purpose is to provide sexual pleasure to the perpetrator. They might differ in the way they do so, but none seems to treat the victim as a human being with personal preferences that ought to be respected.^{Footnote 91} As for rights-violation, it is difficult to see why murder infringes a different right of the victim from manslaughter. If the fact that both coercive and deceptive sexual relations use the victim only as means, sexually objectify them or violate similar rights of theirs were sufficient to establish that they should be criminalized with the same offence, then this would apply to a wide variety of other offences. Criminal law distinguishes between murder and manslaughter (and between aggravated and common sexual assault), and acknowledges that the former is graver than the latter. As a result either criminal law rejects these methods as appropriate to identifying which offence fits which wrongful action, or it only accepts them in addition to other methods. Either way, even if coercive and deceptive sexual relations cause similar non-experiential harm, this does not show that they should be criminalized using the same offence.

Furthermore, it seems that the argument of this paper can be reiterated by basing it on non-experiential harm, thus showing that coercive sexual relations cause greater non-experiential harm than deceptive sexual relations. For example, not responding to the victim’s suffering and negative reactive attitudes arguably makes the infringement of the victim’s (sexual) autonomy graver. Not only does the coercer disrespect the victim’s autonomy by engaging in sexual relations without the victim’s consent, the coercer further disrespects the victim’s autonomy by not responding to their suffering and resentment. While this paper does not attempt to make such an argument in full, the important point is that the notion of non-experiential harm opens some space for this paper’s argument, even if one insists that the type of offence suitable for criminalizing coercive and deceptive sexual relations should be determined solely by the harm they cause.

C.3 The Coercer’s Culpability

The claim of this section can be challenged from another direction, by arguing that what matters most for determining the suitable offences for criminalizing coercive and deceptive sexual relations is the agent’s mental states and, in particular, their subjective reasons or motives for performing this action. It could be further argued that the deceiver might prefer deception to coercion not because they seek to avoid facing the victim’s suffering and negative attitudes, but because they believe that it will be easier to deceive than coerce, the sexual relations will be more pleasurable, or the criminal sanction will be more lenient if they are caught. According to such an approach, deceptive sexual relations should be criminalized with the same offence used for coercive sexual relations if the deceiver is motivated by reasons as bad as the coercer. One way to understand this challenge is by connecting it to the common distinction between wrongfulness and culpability, where “wrongful” is a property of an act while “culpable” is a property of an agent.^{Footnote 92} According to this understanding, the challenge is that the suitable offence should be determined according to the coercer’s culpability rather than the wrongfulness of the coercive act.

Firstly, the argument of this paper can be reiterated to focus on the perpetrator’s culpability because the features of coercion discussed above also influence the moral assessment of the coercer’s culpability by reflecting badly on them. Not being moved by their victim’s suffering and disregarding the victim’s resentment exposes the coercer’s cruelty and shows what little respect they have for other people. Secondly, while focusing on the agent’s subjective reasons and motives may be relevant to other contexts, the general approach of criminal law to subjective reasons and motives is that while they serve as a consideration for determining the appropriate punishment at the sentencing stage, they are considered irrelevant at the trial stage.^{Footnote 93} For example, a perpetrator who robs a rich person is guilty of robbery whether their motive was to enrich themselves or to distribute the money to the poor, and their motives might be taken into account only when determining their punishment. Similarly, in the context of sexual offences, while differences between the perpetrators’ (coercers or deceivers) subjective reasons and motives might be relevant at the sentencing stage, they are irrelevant to the type of offence the perpetrator committed.^{Footnote 94}

Setting subjective reasons and motives aside and focusing on the wrongfulness of coercion renders this paper’s argument applicable to all sorts of coercers. Firstly, it is applicable to the sadistic coercer, who derives some sort of perverted pleasure from the victim’s suffering or from their negative reactive attitudes.^{Footnote 95} While the sadistic coercer does not ignore the victim’s suffering and attitudes altogether, they are nevertheless not moved by these suffering and attitudes in the way they ought to be moved: instead of ceasing to cause the victim’s suffering and ensuing attitudes, they are heated by them and take pleasure in them. Another type of coercer is a perpetrator who is entirely indifferent to the victim’s suffering or negative reactive attitudes. The indifferent coercer is also not moved in the way they ought to be moved because they continue to coerce the victim despite being aware of the suffering and negative reactive attitudes that they cause.^{Footnote 96} Lastly, there is the agonising coercer, who takes the victim’s suffering and negative reactive attitudes to heart and yet continues coercing the victim to engage in sexual relations against the victim’s will. While the agonising coercer does not take pleasure in the victim’s suffering and attitudes or ignores them altogether, their conduct nevertheless manifests that they are not moved in the way they ought to be, that is to stop coercing the victim. More generally it is the wrongfulness of the action which determines which actions should be criminalized and why, while the role of culpability at the trial stage is limited to being a constraint which prohibits the conviction of non-culpable agents (e.g., excused agents). Since this paper questions which type of offence is suitable for criminalizing coercive and deceptive sexual relations, the answer should focus on the wrongfulness of the action and not on the culpability of the agent.

One could reply that the wrongmaking features of coercion identified in this paper merely derive from a difference between the coercer’s character and that of the deceiver because cruelty is primarily an attribute of agents.^{Footnote 97} As a result this difference, similarly to the perpetrator’s motives and subjective reasons, is arguably irrelevant at the trial stage, so if the special wrongfulness of coercion should affect criminal law at all, it should only affect sentence. However, even if the wrongdoer’s character is as irrelevant to the trial stage as their motives and subjective reasons, the special wrongfulness of coercion should still affect the type of offence suitable for its criminalization. Even if the features differentiating between coercion and deception stem from a difference in character, they also manifest themselves as a difference in the meaning of the action. While differences in character do not necessarily have an external manifestation, differences in the meaning of action usually do: a hypothetical bystander who knows nothing about the coercer’s character can still notice that the coercer is not moved in the way they ought to be moved by the victim’s suffering and negative reactive attitudes. By changing the external manifestations of the action, these features affect the conduct element of the crime and thus its actus reus, thereby requiring a separate type of offence.^{Footnote 98} Analogously, even if, for the sake of the argument, the wrongmaking features differentiating robbery and theft stem from a difference between the (aggressive, confrontational and so on) character of the robber and the (opportunistic, cowardly and so on) character of the thief, the difference in wrongfulness between robbery and theft remains relevant to criminal law. In either case the difference in wrongfulness should affect the type of offence even if it flows from a difference in character.

C.4 The Risk of Dilution

Whatever the genealogy of the special wrongfulness of coercion is, a more general concern is that ignoring this special wrongfulness at the trial stage might dilute the condemnation associated with offences used to criminalize coercive sexual relations if they are also used to criminalize deceptive sexual relations. This is because offences capturing both coercive and deceptive sexual relations are unlikely to convey the appropriate condemnation needed to signify the special wrongfulness that arises from ignoring the victim’s suffering and negative attitudes.^{Footnote 99}

The risk of dilution is troubling under each of the major theories of punishment. This is clearest under expressivist theories, which justify punishment by its communicative role in delivering a clear and accurate moral message of condemnation either to the perpetrator or to members of the public.^{Footnote 100} While expressivist theories rarely state explicitly the requirement of an accurate description of the condemned action, this requirement seems to be taken for granted by such theories.^{Footnote 101} Criminalizing coercive sexual relations under a separate and graver offence would enable criminal law to convey a clearer and more accurate message according to which the more wrongful conduct of coercive sexual relations is also more condemnable. By contrast, criminalizing both coercive and deceptive sexual relations under an inclusive offence would render the message conveyed by conviction blurred and confusing. This is particularly relevant for members of the public, for whom it would be harder to know whether a perpetrator who was convicted of the inclusive offence was ignoring the victim’s suffering and negative attitudes.

The dilution of condemnation should also trouble retributivist theories of punishment, which seek to punish the perpetrator according to what they deserve, neither more nor less.^{Footnote 102} Retributivist theories hold that what the perpetrator deserves is determined by their culpability and, while the relations between wrongfulness and culpability are complicated,^{Footnote 103} there seems to be some correlation between them. Given that coercive and deceptive sexual relations differ in their wrongfulness, criminalizing both under an inclusive offence is problematic under retributivist theories too. It is problematic both because the punishment of coercers might be unfairly lenient as it might consist of a diluted stigma that fails to convey that they ignored the victim’s suffering and negative attitudes, and because the punishment of deceivers might be unfairly excessive as the stigma might be perceived as conveying the special wrongfulness of coercion. While imposing a harsher sanction on coercers can be used to offset the reduced punitive effect of convicting both coercers and deceivers of the same offence, to the extent that condemnation makes a unique contribution to punishment, such a contribution will be lost.

Moving to deterrence, criminalizing coercive and deceptive sexual relations under the same offence might reduce the deterrence of potential coercers. The labelling of prohibited behaviour needs to be precise because empirical research shows that the criminal stigma forms an integral part of the deterrent effect.^{Footnote 104} The criminal stigma consists not only of labelling the perpetrator a ‘criminal’, but also of labelling them according to the offence (‘murderer’, ‘rapist’, ‘robber’, etc.).^{Footnote 105} The dilution of condemnation might lead to a reduced deterrent effect on coercers because some potential coercers, who would have been deterred by the stronger condemnation attaching to a separate offence highlighting the special wrongfulness of coercion, might no longer be deterred by an inclusive and less condemnatory offence. Again, while imposing harsher sanction only on coercers could somewhat offset the reduced deterrent effect of the inclusive offence, whatever unique contribution labelling adds to deterrence will be lost.^{Footnote 106}

One could argue that using an inclusive offence is preferable because it would have an increased deterrent effect on potential deceivers. An offence which includes both sexual coercive and deceptive sexual relations is likely to create stronger condemnation than a lighter offence dedicated only to deceptive sexual relations and therefore would be more effective in deterring some potential deceivers. However, while an inclusive offence might deter some potential deceivers more effectively, it might be less effective than a lighter yet dedicated offence in deterring other potential deceivers. Using a separate offence would sharpen the message for those potential deceivers who mistake the stronger condemnation associated with the inclusive offence to imply that this graver offence is not applicable to deception but only to the more wrongful conduct of coercion. For example, if the offence of rape is used to criminalized deceptive intercourse, some potential deceivers might mistakenly believe that their conduct does not amount to rape (the offence of which Kashur was convicted and Assange is suspected).^{Footnote 107} Therefore, if one’s main motive for using an inclusive offence is to enhance the deterrence of potential deceivers, one needs empirically to establish that an inclusive offence would increase deterrence rather than decrease it. Furthermore, even if an inclusive offence deters more potential deceivers, this advantage might be offset by the weaker deterrence of potential coercers, resulting from the dilution of the condemnation attached to the inclusive offence. These points show that it is difficult to establish that an inclusive offence is better for deterrence and that the risk of dilution has to be taken into account either way.

This section has argued that the difference in wrongfulness serves as a salient consideration for separate offences because an inclusive offence might dilute the condemnation it conveys, thereby undermining expressivist, deterrent and retributivist goals. While there are other considerations for and against separate offences, one consideration is particularly relevant for any argument based on dilution. It could be argued that if criminal law consists of separate offences for each circumstance which makes the perpetrator’s conduct more wrongful, it will become so inflated with offences that members of the public will no longer be able to recognize what the offence name means. As a result, using overly-refined offences might undermine the stigma because it does not allow grouping criminals as ‘murderers’, ‘rapists’, etc. Over-refinement in offence definition is indeed problematic, but this paper does not call for a separation of every two forms of conduct which differ in wrongfulness into two separate offences (e.g., criminalizing robbery of 20 dollars with a different offence from robbery of 200 dollars). This paper argues that coercive and deceptive sexual relations are different types of wrongful conduct. It seems more plausible to separate offences when the types of wrongful conduct differ than when a particular circumstance differs.^{Footnote 108}