Monday February 23 2015
Rape by Fraud: Coercion, not Deception
Chair: Prof. Benjamin Berger
Abstract: In four recent cases, the Supreme Court of Canada sought to protect gender equality, sexual autonomy and other Charter values by expanding the scope of s.265(3)(c) of the Criminal Code: sexual assault by “fraud”. Although the Court invokes “significant risk of serious bodily harm” to limit the scope of consent-vitiating deception (or nondisclosure), its
application of this standard has been justly criticized for inconsistency, and for diverging from the scientific consensus about transmission risk.This Article offers a principled way to distinguish criminal from noncriminal sex by deception. Rape-by-fraud should be defined in accordance with the core values protected by sexual assault law: moral retribution, harm, gender equality, and sexual autonomy. On all these counts, sex by deception is distinct from sex by coercion, and it is less serious. Voluntary-but-deceived sex is not sexual assault. Deceptions that lead to sex should be punished as rape only if they are coercive: that is, they led the victim to believe s/he had to have sex. We do not need a fraud provision to capture such deceptions: they are largely prohibited by other sexual assault provisions that prohibit sex by threats, fear, and abuse of trust, power or authority. Moreover, we do not need a fraud provision to capture the two deceptions that constituted rape at common law: fraud as to identity and fraud as to the “nature and quality of the act”. Both these situations involve no consent: agreement to nonsexual touching is not consent to sex, and agreement to sex with one person is not consent to sex with another.
Monday February 23
1230 to 2 in FCR (Osgoode Hall 2027)
Please RSVP to LGonsalves@osgoode.yorku.ca
Email as above if you would like a copy of Prof. Buchanan’s draft paper.