Dr Chloë Kennedy: Deceptive Sex

[Music] Hello everyone, welcome to Talking Research. I am Asmita and this is a podcast that features In-depth interviews with prominent academics and researchers who study sexual violence across its different manifestations. Disconciliation features and in-depth discussion of sexual violence, both in specific cases and more generally. [Music] In this conversation, I am talking to Dr. Khloe Kennedy, who is a senior lecturer in criminal law at the University of Edinburgh. Her main research interests are criminal law, legal theory, legal history and the relationships between these areas and her research also focuses on law and gender and law and religion. In this episode, we're talking about Khloe's new paper on deceptive sex. Where it is, what forms it takes and its criminalization. So it's a really interesting conversation and if you have any feedback on this episode or the podcast in general, please do write to us our social media handles and our email conduct details are all in the podcast description. There is also a link to organizations that support survivors of sexual violence, gendered violence. That's also in the podcast description. In this chat, a thing that came up was statutes and I don't have a legal background so I had to understand what that means. So, statutes very simply is a law that is enacted by a legislature. So, just wanted to say that before we begin but that's everything from me. Thank you so much for listening. Thank you so much for tuning in and yeah, I hope you enjoy this conversation. Let's dive in. Hi, Khloe. Welcome to Talking Research. How are you doing today? Hi, Esmeeta. Thank you for having me. I'm doing well thanks. How are you? I'm good too and it's really exciting talking to you and you know, we're talking about this fascinating new project that you're working on and yeah, I'm really, really excited to have that conversation but before I ask you about that, I want you to introduce yourself to our guests and I'd like you to introduce yourself in a way that you like to be introduced. Absolutely and well thanks again for having me. I'm Khloe Kennedy. I work at Edinburgh Law School where I'm a senior lecturer in criminal law. I teach a combination of subjects but mainly criminal law and criminal law theory. But my research is another but why do they not? I also work on legal theory and legal history and law and gender. I've also been doing recently and in the past a bit of interdisciplinary work thinking about how combining law with other sort of humanity subjects can help us think a bit differently about law and its impact in the world. Wow. I mean a lot of what you said resonates with when you sent me or article and I felt like it was written, you know, it was definitely, it was written in legalese if that makes sense but it was very practical, you know, something that even those of us who don't study law or who are not vocational lawyers could understand. I don't know if I'm using the word legalese correctly. Well, it's right to me. I mean, I think it's tricky when you're working on a topic which obviously is the subject of lots of you know legal decisions and there's lots of people writing about it. You have to kind of engage with the debate as it's going on which requires a degree of sort of terminology usage and so on. But I'm so happy about with period on this podcast is that hopefully this will give me another place to try and explain some of the issues and you know why I think they're important to a bit of a different audience and perhaps making it a bit more digestible unless legalese but we'll see how we go. Maybe this will be as legalese. Let's just see how it goes. Yeah, perfect. So tell us about, you know, how you got into researching gender-based violence or, you know, sexual violence and just that specific area is that something you've always been interested in or, you know, did you pick that up along the way? Yeah, that's a good question. I have taught sexual offenses law for a number of years and across a range of levels, so undergraduate and postgraduate and I'm close to and work with a number of colleagues who work in this area. So Vanessa Monroe who I worked with on the feminist judgments project and also Sharon Cowan who also I worked with on the feminist judgments project. But also Aiman Keane and you, colleague of ours, they all work very much in this area so I guess I've kind of had an interest in a number of years and I've picked this up more guess along the way as well. The project I'm working on now it's not exclusively about sexual offenses. The project itself is really kind of looking at like the larger project is looking at legal responses to what I call deceptively induced intimacy so that could be romantic relationships and marriage as well as as well as sex. And I'm looking at this over the long kind of historical period to think a bit about how these have changed over time. I should say I'm also very aware that these types of relationships don't exhaust the terrain of intimacy. There's lots of other kinds of intimate relationships that are important but these are, these are the ones I'm looking at and this project. And what I'm really sort of trying to do is construct a sort of history of how we got to where we are and thinking about how some of the challenges we currently face in trying to work out how to respond to this sort of conduct, happened up within the past and sort of how we like I say we've ended up where we are today. And I want to in this larger project kind of think about how and whether it's appropriate for the state to intervene in kind of sanction by that I mean like punish or impose civil liability for this sort of conduct and what kind of legal response is most appropriate, what sorts of deceptions should trigger a legal response and what kinds of conduct should be considered to be deceptive. And I'm really lucky that I've received some funding from the Arts in Humanities Research Council to undertake this research. And I'm working with a postdoctoral fellow, her name's Kellyanne Cousinus, who's very talented historian and also with a really exciting and recently award-winning artist called Jamie Crew. So that's that's the kind of overview where I am now and what I think we'll talk about today is a specific paper that really just focuses on this question of deceptive sex. Yeah and that sounds like a fascinating theme as well you know just that intersection of disciplines of you know history and art and yeah that just sounds amazing but yeah let's come and let's go to what you've just been saying deceptive sex and you know that specific area so firstly I want you to walk us through that what is deceptive sex you know and you know are there different kinds of deceptions or yeah what do we know about that yeah yeah I mean on the wider project there is actually a lot going on in it I do have a website or maybe maybe send you the link if you want to keep on talking about what's happening but your question about yeah deceptive sex so what I would say is it's sex that happens when one person is operating under a false belief now often this false belief will be attributable to some other person's deception and deception can be of course you know the kind of lie some other kind of misrepresentation I and some other people also use the term as a kind of shorthand for a slightly wider range of situations where one person is operating under a false belief so for example when the other person has failed to disclose some kind of information so it might not be that they have lied or that they've kind of actively represented as the court's like to describe it it might be that they just haven't told the other person something which you know the law or we think is important and that they should have known so I suppose technically if like me you're interested in this wider range of situations then it's maybe more accurate to talk about an information deficit rather than a false belief necessarily but that's that's the kind of basic just of what I'm looking at the kinds of deceptions that might be told you know I think we're going to talk more about how the law has thought about deception and which of the kinds of deceptions that might be told matter but the range of deceptions that exist you know there is work empirical work that that tells us something about the sorts of deceptions that occur and I'd say and they range from deceptions about what the activity actually is right so it's nature or it's purpose the fact that it is sexual activity it also includes conditions under which the sex will occur or is occurring so this could be like whether the contraception is used for example and certain facts about oneself as well so there's there's some great empirical work and there's also a fantastic book I should I should mention called intimate lies and the law by by Jill Hasday and she goes through in that work a lot of different examples she has found within the US so just to give you a couple more examples to kind of Flash that, I suppose there's different categories. Examples of the first kind of deception I mentioned, this is the one where one party doesn't know that the act is sexual. These examples are often the ones that have come up to the courts anyway quite old, right? And they also tend to occur in relationships where there's some power in equality, so a teacher or a student or a doctor and a patient. The examples, like I say, which have come through the courts have been where some things been presented as a medical procedure when it isn't. The second kind, the conditions under which sex will occur. I've mentioned already kind of contraceptive use. There might also be examples of use of the withdrawal methods, which is kind of related to reproduction. And examples of the third kind, this is where you might not reveal or you might lie about something to do with who you are. These range from identity in this sense of kind of an imposter. So the classical examples of these often are cases involving husbands, right? So impersonating a husband or it might be about your health, your fertility, your age, marital status, or your marital history, your desire for children, your sexual orientation, your gender, addictions, finances. I mean, the list could go on and on. Professional achievements, racial backgrounds, political affiliations, religion. There are, as you say, there are cases involving sex work where a client has promised a pay and then not done so. And I didn't cover those in my paper because in my view, they kind of require their own separate treatment. They raise specific complex and contested questions about the nature and the gut legality of sex work that I think don't carry over into the context of other justceptive sex. So that's not something I really discuss in my paper, but there are cases that deal with this. I mean, I think this kind of points to something I'm very keen to try and do in my work, which is to pay attention to the context and the relationship between the parties, the kind of power and balances that exist, professional, social, whatever they might be. And how these are important to how we respond through law. And some work on this topic does that really well. Other work doesn't so much engage with that. So that's something I definitely try to do within my own work. Wow, that was so well explained. Add a few things that I wanted to ask you about that. So when you said false belief, that's essentially a lie, is it? Well, it could be that somebody actively lies about something. It might be that they don't. Most people think of a lie as a kind of false expression. You say something that you know to be untrue. It might be that you don't explicitly say anything. It might be you somehow represent the situation you infer something is the case. Or it might be, like I was saying earlier, there's this kind of wider category of cases that sometimes get talked about, and I talk about them in my work, where you don't tell someone something. So it's not so much that you are asked or you volunteer information that's false. It's perhaps that you don't tell the other person something which is typically important. And so they might assume something about you and you don't put them right. Now that's a, that kind of situation is more contentious and courts, at least in England and Wales, have in some earlier cases tried to say that these sorts of situations where we're talking about non-disclosure, rather than active misrepresentation or active deception, shouldn't necessarily be captured. Or like kind of potentially punished. But other people take a different view. I mean, actually, I think this might sort of lead into kind of some of the more general debates that exist around how to criminalize deceptive sex and whether, we should, that's just one example. But you're absolutely right. So first, believe me, there'll be something that arises in lots of different ways. And in theory, if we're concerned about not disclosing information, it's maybe a bit more accurate just to talk about an information deficit. We don't know necessarily that they have this false belief. But they haven't been told something that we, for some reason, think is significant and they should have known. Yeah, there's this TV show that's just come out unbelievable. And I absolutely love it. I don't know if you've seen it. But it's-- I haven't seen that. What's it about? It's on, I think it's on BBC EyePlayer. It's about-- so it's by Megalakoyle. And it's about essentially a survival story, a rape survival story. I have watched this. Oh my gosh, sorry. I hadn't remembered the name of it properly. I have watched this. Yes. Yes. And it deals with-- sorry, I'm interrupting you. Please go ahead, Asmita. No, no, please feel free to interrupt me. It's great. I was going to say the plotline with her best friend, Terry, and how-- Yes. --when they're in-- Is it in Italy? And she has a three sum with those two guys. And she've redefined out that it was planned. Like she thought they were strangers and they met in a bar. And it was very, you know, sort of spontaneous. But she redefined out its plan. So I'm just thinking, is that sort of kind of the false belief premise that we've just been talking about? Yeah, yeah, exactly. So that's a good example. I mean, not all situations, I suppose, one reason why people want-- there's many reasons. But one reason why people might want to distinguish between sort of misrepresentation or lies and non-disclosure is that we can't necessarily assume there's always going to be a sort of malicious kind of motivation for people not telling other people certain facts about themselves. And I do sort of think about that a bit in my work. But that is, yeah, a good example. In fact, that series has another couple of examples which are relevant to this topic. I don't know if you've seen-- I mean, there's probably spoilers here for any of your listeners. But there's the encounter between the main character. And sorry, I'm really terrible with names. I've forgotten all the characters names. But the main character and one of her sexual partners-- and he takes off the condom. Yeah, there's the condom removal example. And also the one where her close friend Kwame doesn't tell a woman who he has sex with that he is-- Well, I mean, she said, well, this is-- I'm not 100% sure he's supposed to be portrayed as gay as much as by, but certainly he doesn't exclusively have sex with women. And she feels very upset by that. In my paper, I mean, we obviously can sort of talk more about the details of the paper. But in my paper, I try and suggest that not every one of those three examples probably should be punished as a sex offense. But I think this is exactly the kind of situation. And that series is a good example of how this is, I think, kind of becoming more of a cultural phenomenon, something that people are learning more about and kind of having conversations about. So I definitely think it's something that is attractive more attention. And I think for good reason, it's a tricky area. It's a difficult subject. But it's one that does-- it does matter. And it's kind of unavoidable to kind of deal with it because it is something that is coming up in real life and also in, as you say, a TV series and beyond. And just very well done, all of those plot lanes in that show I felt. I think it's a called "I May Destroy You." Sorry, don't mean to crack your big case. I'm sorry. If you want to follow up. No, no, no, it's fine. It's just in case anybody wants to watch. I think it's called "I May Destroy You." I'm confusing it. Another show called "Unbeliever"-- Yeah. It's easily done. I guess that I'm terrible with names. But that's, yes, it's a really-- I think it's a great and very nuanced TV series. Yes, yeah, absolutely recommended. And in that plotline, we find out-- in the-- according to UK law-- removing a condom without the consent of your sexual partner is categorized as rape, right? But wanted to sort of segue into that sort of a-- it's fair of these debates around criminalizing deceptive sex. So I was wondering if you could walk us through those. And obviously, please correct me if I just-- Well, I think there's a lot of different approaches to the question of whether this is a crime or not. And how courts treat this really does very spoiler to the viewers again. There is a very generous, semi-question in advance. I think we will cover that. So I might just hold up and answer that question in a moment, but for sure, it's potentially an offense in England and Wales and possibly in Scotland. But the more general debates-- because I think that's useful to know a bit about maybe before we get into the details of how courts have kind of responded-- I would say there's two main questions in these debates. So the first would be assuming there is a need for some kind of legal response to this sort of conduct, what should it or what should they be? And the second would be what sorts of conduct should trigger these responses. So on the first point, when it comes to just the criminalisation question, there are some people who think that this sort of conduct-- if it's going to be a crime, it should really be considered fraud. So fraud can be defined in a few different sorts of ways and in different jurisdictions. But the basic idea is that you-- through your misrepresentation-- induce somebody to do something that would not otherwise have done. Now, the key thing is that for most, for many jurisdictions, usually fraud involves some kind of economic loss or gain, or at least the risk of that. In Scotland, in fact, fraud is a bit, it is much wider than this. Any sort of practical result that's obtained through deception can constitute fraud. But there are people who say, look, we need to maybe think about expanding fraud such that it doesn't only encompass economic losses or gains, and these sorts of outcomes, these sort of deceptively induced outcomes should really be considered fraud, because what matters is the deception. And in fact, in some older cases in Scotland anyway, this is sort of how this was treated. It was a sort of fraud-like offense anyway. And this one 2013 case in Scotland, which was prosecuted under the common law, so not under the statute that we have, which is the Sexual Offenses Scotland Act 2009, it was prosecuted as obtaining sexual intimacy by fraud. Now, there were up until relatively recently, offenses, a bit like that, which existed in Britain. One of them, which applied England and Wales, was in the Sexual Offenses Act 1956, which said it was a crime to procure, was the word that was used, a woman, by false pretenses or false representations to have sexual intercourse. And in Scotland, there was a similar-ish offense, although slightly different. Now, both of these acts, which are obviously fritz of all gendered, so it's a woman who's been procured to have sex. But they were also both, so they were repealed, and they were not replaced with anything similar. Some people think that was a mistake. But the result is that now, where there is criminalisation of deceptive sex, generally speaking, in Britain, it's largely treated as rape or some other non-concentual sexual activity. I do think, actually, that the procuring offense for something like that exists in other common-large jurisdictions. So Hong Kong, for example, I read a great article by some called Tianlin Chen about criminalising sex under religious inverted commas, false pretenses. And that piece mentions a similar kind of legislation. But yeah, so in Britain, it's mainly treated as rape or some non-concentual sexual activity. And that's where most of the debate has really been focused. So what are the debates here? I think as we're saying that mainly the focus is on the question of what kinds of deceptions will thisiate invalidate consent to sex, or otherwise valid consent. When will that be treated as not meaningful and real consent? Having said that, though, this isn't, I don't think, a conversation that's confined to jurisdictions where consent is the main concept that's used to define sexual offences, because you might, even if you don't use consent within your jurisdiction, say that deceptive sex is one way of failing to engage in adequately respectful sex, and therefore should be, should be a crime and possibly a sex crime on that basis. So the other big question is this one of what kinds of deceptive sex should trigger this criminal response, so put differently what deceptions should be punishable. And I think what's key here is that any jurisdiction that treats this as a crime tends to do so, from the perspective that sexual autonomy is a very important value to protect, and that deceiving somebody into having sex in some sense undermines that sexual autonomy. Now, there's been lots and lots written about sexual autonomy by lots of different people, but one of you is that it means that you should be able to give the right to choose freely, whether to have sex, you know, where, with whom, and under what kinds of conditions. Now, if you, on one reading, that could mean basically anything that might be important to you, should be potentially possible. Deceptions about that thing could be a basis on which someone's punished. Now, almost no one says that literally everything is important in that way. There's one academic whose name is Jed Rubinfeld, who has used this possibility, though, to argue that deceptive sex should never be a sex offense, right? His view is kind of paraphrasing largely, obviously. There's no way of limiting which deceptions undermine sexual autonomy, so we just shouldn't, we shouldn't criminalize them. It's not a question. Rap is not about sexual autonomy. It's about, it's about force. So, I mean, I think that view is quite unpopular, I think it's fair to say, although some people do subscribe to it. But there are, you know, there are other ways, there are existing ways of trying to decide which deceptions matter. One big kind of long-standing one is that deceptions which relate to the nature or the purpose of the actually be punished. So, I've mentioned those already, the examples, including for like medical procedure when it isn't. But the problem with that approach, using that test, if you like, to draw the line, is that, if sexual autonomy is what we value, it's quite hard to understand why those are the only kinds of deceptions that should matter, right? Why is that the right place to draw the line? Another approach that's been suggested by some people would be the line to be drawn if there is physical harm, or physical harm is risk. But again, if sexual autonomy, the idea of choosing freely is what we think sexual offenses are all about, it's not super clear why that's where the line should be drawn either, and it should be drawn either. Some other people like Jonathan Herring amongst others have made suggestions along the lines that any deception or failure to disclose that informs the specific individual's decision to have sex should be punished as a sex offense. If the other person knew or should have known that this fact would be important, right, it would be central to the person's decision to have sex. Now that, that I think is attractive if you think that sexual autonomy is what sexual offenses are about. But the difficulty I think, as I see it that arises with using that test, is that it does leave quite a lot of room for uncertainty in the law, unless there is a totally clear cut, unequivocal proof that that deception really, really matter to the complainer, then juries and judges will be left to decide whether they think this is a kind of deception that really would be important. And I think there's probably not that many cases where it is completely unequivocal. So, and more importantly, I think we probably have reason to care about a wider range of cases. As Jonathan Herring's point about, we should think about situations where the other party should have known it would be important to Jess. It's not just about whether the other party, the one who's not given this information or who's been deceptive, knew for sure, it's about, well, what sort of things do we think we ought to be paying attention to? It's a question of trying to isolate what sorts of factors would be reasonable to require individuals to be transparent about. I think that's really at the root of what's going on in a lot of these debates. And I think unfortunately the tests that so far have been put forward, don't do a perfect job. Now, no tests will be perfect, but I think there are problems with each of them, which that's one of the reasons why I've tried to put forward an alternative. That's quite interesting what you said about how do you even define what deception matters to a survivor? I don't know, you know, how do you even prove that? How do you measure that? And exactly what you said, if we don't, we can't really leave that up to Jury's and Jadis to decide which deception matters. That was very interesting, but yeah, please do come back to how courts treat deceptive sex. Sure. And I should say that conversation about, you know, it might be up to Jury's and judges was, that thought was really something that I have come to through conversations with lots of other people, specifically a really fantastic research, called Rachel Clement-Tolly. She's worked on this area low, she's done a whole PhD thesis on this, which I mean, I haven't read all of it, I've read bits and it's really great. So yeah, there's this question of courts, right? So it obviously varies by jurisdiction and across time, I mean, like I was saying, one of the things I've been looking at, and I will continue to look at, is how this has shifted, and how it's shifted also, not just within the criminal law sphere, but also from civil, so non-criminal wrongs, too criminal wrong. So there's some fascinating histories of what's called seduction. This is a kind of civil law action. Some places it was criminal in the past, but it was mainly civil in Scotland, and also in England and Wales. It was a very different action in Scotland. It's actually fascinating because unlike in England and in America, in Scotland, it's an action that was always available to women. So in England it was seen as something which the father of a woman or or her master, this is the time period we're talking about, we're bringing in the basis of loss of service. But you know, this is the seduction, which was a civil action, it's also a fascinating area because it's a really shifting wrong. It doesn't have very clear cut boundaries and they change over time. But at its core was this idea that it was sex induced by a promise to marry, that was not fulfilled. Lots and lots could be said about that and people have written about this and I'm currently writing something about it. I should say also, Aruishi, Garg was written a fantastic prize-winning piece about this, how a similar kind of practice is currently being punished in rate, sorry, as rate in India. But in these, in the jurisdictions I'm more familiar with with England and Wales and Scotland, the two kind of longest standing deceptions that have been punished as rate are those, like I've mentioned already a couple of times, that go to the nature or the purpose of the act and the impersonation of a husband. The range of impersonations that have counted, that are punishable, has expanded over time to include partners and now to include people who are known personally to the complainant. Those are the two deceptions that are included within the legislation which governs this area of law. So in England and Wales, the Sexual Offenses Act 2003 and in Scotland, the Sexual Offenses Scotland Act 2009. So under the 2003 act, when either of those deceptions occurs, so the nature and purpose of the act or impersonating someone known personally, it's what's called conclusively presumed that the complainant did not consent to this act and that the defendant did not believe that the complainant consented. It's a bit different under the 2009 act in that when either of those deceptions occur, the act says there's no consent to the sexual activity, but it seems from reading the statute anyway that the prosecution still has to prove that the accused person did not reasonably believe that the complainant was consenting. But these are not the only deceptions which have been treated as or been said to be potentially punishable in Britain. The list has grown and the way it's grown is through judges deciding that certain deceptions will mean that there's been no consent, which is and consent is defined by the 2003 act and mentioned as agreeing by choice with the freedom and capacity to make that choice. So, for example, courts have suggested that deception, but not non-disclosure, although that distinction in a more in a very recent case called Lawrence, which I'll mention in a moment, was brought into question. The sort of one of the things the courts said was perhaps this distinction doesn't last for all that much. Other people have made that point already. But in the judicial decisions, there's been a suggestion that deceptions about one's HIV status could initiate consent, deceptions about the use of a condom, the withdrawal method. So, what have been termed gender deceptions have also been held to initiate consent, but in contrast, lying about how he had a bisectomy was recently held not to initiate consent, even when the sexual consent was explicitly based on the complainance understanding that she was not at risk of becoming pregnant. So, this is a very controversial decision and also that's the Lawrence decision I mentioned. There's also been a decision that an undercover police officer who had sexual relationships with citizens to whom he had not disclosed his identity should not be prosecuted for rape. And this was, you could in some way see that as an impersonation case, but it doesn't, it's obviously not something known personally to the complainant, but the argument was that his presenting himself as having the same core political beliefs, so environmentalist beliefs, were central to the decision of the complainance, the victims of others to have set and enter into the relationship with them. But I think what's really stands out for me in looking at some of these cases is that there's a real struggle to try and contain the range of this offense, the kind of scope of punishment. And I can see why that is happening, but I think some of the decisions had been sort of argued and reasoned on the basis of this old idea of the nature and purpose of the act. So, even though the prosecutions haven't been brought under the section of the legislation, which criminalizes this sort of deception, it's sort of that test is found its way into the more recent decisions which have expanded the range of, or the possible range of criminalisation. And sometimes in a way that just doesn't feel very satisfactory, so the Viseksney case I mentioned is quite a good example here, I think, because the court said, this deception doesn't go to the nature and purpose of the act, but just through its consequences. Now, one of the reasons I think that the nature and purpose of the test act is quite difficult is that, you know, what counts as the act, this is a philosophical question that people have struggled with for a very long time. And so, it's not surprising to me that you can get lots of different kinds of answers, depending on how you want to kind of draw the boundary around what constitutes the act. So, yeah, that's kind of a sort of quick whistle stop, I suppose, of how courts have approached this in Britain anyway. And I don't think it's necessarily, I mean, people have called for this to be something that the low commission look at again, because the decisions are really some of the decisions are hard to reconcile with one another. And I think there's a kind of degree of uncertainty that's not desirable. Right, right. That was really interesting and just, I should have warned you before that I'm not very well-versed in, I have no background in the law. So, you know, my perspective is a complete rank outsider. But I mean, just some of that is so perplexing. I mean, especially that was said to me case, it just does not make sense to me at least. But I mean, I'm sure, I guess, that's what we're talking about those sort of inconsistencies and those debates. And I'm sorry that you might be hearing some background disturbances. It's festival time in India. So, there's kids on this street and my room faces this straight. And this is a great place to come to your framework. Can you come up with a framework in this paper that we're talking about? And I'll include a link to this paper in the episode description so that people can go and read it, which I highly recommend. But, you know, you've given us a fantastic background on the debates around criminalisation and, you know, how, on, you know, how cold street deceptive sex. But you've also come up with this framework. And I wanted to ask you, what do you recommend? Do you recommend that every deception should be treated as punishable? Yeah, that's, I mean, thank you very much, as me, for your kind words about the piece. I think it should be coming out fairly soon. So, hopefully, it will be no problem to give you a link to it. It's, it's a piece that's coming out in legal studies. And as you say, I've tried to put forward a different kind of framework for thinking about the questions we've been discussing. And it's really an attempt to try to situate the idea of sexual autonomy in a fuller account of why sex matters to us that could try and help us identify which kinds of interferences with sexual autonomy are especially bad. And this fuller account of why sex matters to us is based on my argument that sex and intimate relationships both have a role to play in the way we construct our identities. I'll say a bit more about what I mean by that in a minute. But, but what the core argument means is that sometimes, at least if you are with me on what I'm arguing, sometimes when a person engages in deceptive sex, they're failing to respect the way we construct our identities. And so, what they can, what they do can be understood as an example of what the philosopher Charles Taylor has called identity non-recognition. And that's, you know, explained a bit more in the paper itself. But I'll try just for listeners benefit to explain a little bit more about what I mean by identity and why its construction is important to us and how deceptive sex might be relevant to that. So, in my work with the theories of identity I rely on, see identity which we can also call our sense of self-inarrative terms. So, they say that our sense of self, our sense of who we are, is built up by a process of integrating our experiences, our social and institutional roles, and our values into a meaningful or autobiography. And this autobiography is essentially what gives our life meaning. So, it's very important to us. Now, not all of our experiences or roles or values are going to matter equally here. Not all of them are going to be significant to this life now. But when someone interferes with those of them, which are significant or interferes with our ability to make decisions in accordance with them, this can lead to harmful effects reduced self-worth, self-esteem and other kinds of harmful consequences. But also what they do signals a lack of respect for the life narrative of the person who is likely to have been harmed in this way. So in my paper what I do is I argue that some but not all examples of deceptive sex can be understood as interferences of this kind. So you might be wondering at this point, how can you possibly pick out which deceptions are bad in this way using this idea? And I argue we can do this in two ways. So the first way reflects the fact that these life narratives that I've mentioned are on the one hand very personal. So it's to some extent up to each of us to decide what we value and the roles we adopt and we integrate into our sense of self. So what that means is in relation to deceptive sex is where someone explicitly tells another person in advance that something is absolutely central to their decision to have sex. Their decision to have sex depends on it. And my view is that any deception that relates to that amounts to this phenomenon I mentioned, identity, non-recognition. So on my view, at least in principle, any deception, if it's been explicitly referred to as something that would be absolutely central, should be potentially punishable. Now, that's what earlier, this might not exhaust all the situations we have reason to care about. It seems reasonable to suggest that there might be certain issues that are very likely to be significant. So not so much that there's been advance notice, there's been no kind of explicit conditional consent, but it would be fair to say that it's wrong in these situations to deceive someone about that issue. So if we can predictably guess that it's going to be something that matters, then we should possibly care about it. And here's where I think is the second way that my framework can be helpful. So even though identity is on the one hand very personal, on the other hand, it's shaped by culture. And what this means is that in any given time or play, certain roles and values are likely to be significant in identity constructing terms. And if we can somehow find this out through empirical research, for example, this can try and help us work out which issues it would be reasonable to expect a sexual partner to be open about. And that's what I try and do in the paper. I go through list of possible sections that I mentioned earlier on in our conversation, the kind of things people tend to be deceptive about when I try and use empirical research and where that's not available, to be honest, my own intuition. So I say this quite frankly in the paper to try and work out which is these will generally be significant in this identity forming sense. And one other thing I do, which takes quite a lot to explain. So obviously if people can read it if they're interested, but I try and also engage with the way that under sort of modern conditions, sex and intimate relationships are, you know, they overlap, but they are also separately important to us. So I try and suggest that some of the deceptions, even though they might be important to the deceived persons' identity narrative, they may be better thought of as being about relationships, induced relationships rather than sex. And I think that gives us good reason to also think about how the law responds to those sorts of situations, which is what my larger project is really geared towards. And the result then of my analysis as people can see if they read it is more deceptions probably than are currently definitely punishable in Britain would be. So that would include certain kinds of impersonations. It would include gender with some important caveats about trans people. So actually communicable on chronic diseases, anything that relates to reproduction. And this is because these these deceptions are important in my view because of the way that they relate to sexual orientation of the person who's not been given the relevant information, how chronic illness, impaired hood and the termination of pregnancy. These are all things that are known to be very generally very important to people's sense of self and their life narrative. So these are ones that I go through in more detail on the paper, like how I think that this framework I set out can better explain why these matter beyond the kind of more obvious perhaps sort of physical consequences or nature in the purpose of the act type test. So I think my focus anyway that this is not, this is a conversation. I don't see this as being a final say. It's something I think is worth discussing though this question of whether this line join attempt I undertake is defensible and perhaps preferable to some of the alternatives that exist. But I think you know a full conversation about the criminalisation of this conduct has to also build in of course really important concerns like considerations of privacy of public health goals when it comes to the criminalisation of non disclosure of certain kinds of diseases. There's lots of research on this. I do refer to that in my paper but what I've tried to do is just engage with the prior question what I see is the prior question of what sorts of things do we have good reason to even think about criminalising and why more satisfying substantive basis on which you're trying to decide these questions that's what I try and do anyway. Wow that's wonderful. But I guess we've been talking a lot about criminalisation and how God street this. I suppose the context that we're in the broader social context is this conversation around how criminal justice systems and police and all of these institutions, you know the institutional racism and the institutional bigotry that these institutions all are filled with. How do we how do we look at justice? You know while also thinking of who's being harmed in that pursuit and you know the different sort of roots that we can potentially look at I'm sorry that was very badly articulated. No I don't know. But I was trying to get at is you know are there any non criminal roots of dealing with deceptive sex you know I suppose because there's just something that you that you look at in your article but also there's so much conversation around this that it's it's it's it doesn't seem holistic to talk about policing and criminalisation without talking about without thinking about the harms attached to that and what can those roots look like. Totally I think that's a really excellent point and I'm I'm mindful of the growing body of work and scholarship by anti-carser feminists who advocate for alternative kind of restorative or transformative justice responses to sexual violence and gender based violence and you know this is not something I can claim to be an expert on and trying to educate myself more on this I've been reading work for example by Mimi E. Kim who who I think for someone who's trying to get away into this stuff. That's not really clearly you know how in the 1970s movements to address gendered violence became closely associated with kind of law and order movements. You know my intervention I guess I just sort of start by saying my intervention this piece I wrote was pitched to come in to the conversation as it's currently unfolding where of course there is already criminalisation happening so I'm kind of coming from it that angle partly because it's already the way the discussion is going but I absolutely think it's important to think about these questions and I think you know the the alternative responses that people like anti-carser or feminist advocate for they place a lot more emphasis on kind of community resolution and support for different kinds of harmful conducts. So I guess you might think in terms of sort of if you I think if you use the terminology of sort of who owns the wrong you might say criminal wrongs are sort of seen to belong to the state and that raises its own issues for especially for sexual offense prosecution civil wrongs belong to the victim and here maybe if you use that terminology it could be that these belong to the community in an important sense and I think you know this is something I am very much trying to learn more about I'm curious to think about how this could potentially translate to context beyond beyond the marginalised communities where these movements grew up because you know so if the if the if the relevant sort of inverted commerce perpetrator or victim survivor doesn't belong to that marginalised group how does that how could these kinds of ideas play out in what against our current institutional practices and backdrop how is it possible to shift responses to sexual and other gender violence to these alternative methods without creating at least the impression that they sort of conducts somehow less serious I think that's a risk that certainly other people I'm sure have written about and that's something I need to read up on more and but yeah there's civil responses criminal responses other responses in my larger project I've been mentioning how interested in trying to uncover exactly what kinds of civil and criminal actions have been used what they have been targeted targeted targeting what they've offered to those who have been subject to this kind of conduct. I guess I'm trying to see as far as possible given the limits of sources, especially historical sources, what people seem to have wanted or needed. And I guess I like to, that and myself, and thinking this is kind of a historically informed exercise of mapping out what Claire McGlin and Nicole Westmirland have called kaleidoscopic justice. They have this great article that deals, it kind of has, it's an empirical study that talks to people, women who have suffered sexual violence and asks them, you know, what would justice look like to them? And it's clear that there's a range of different things, including consequences for the person who's harmed them, recognition and acknowledgement, dignity, voice, prevention, connectedness. I think clearly there's huge differences across different historical contexts. And in terms of the conducts, my study looks at it's not, I don't think the same necessarily as that, which was experienced by the victim survivors who were consulted for the study. But I want to chart this because I think in some ways, looking at this in a long term way, shows that these questions and the desire to have a legal response to this sort of conduct, it's not 100% new, it's not totally novel. But the way this desire plays out and the areas of law that are expected to do the work has changed. And I think, you know, the disappearance of certain non-punitive or, you know, at least civil law responses can perhaps help us understand also and critique the shift towards more punitive responses. Like, is the reason we have more activity for one of the best word in the criminal law sphere, partly because, you know, we've certain non-criminal actions have just disappeared. And, you know, are we now just seeing a transition into a different area? So, yeah, I think that's a huge important question. And one, I am trying to do work on. And I have to do more work on that, for sure. All of us, I think all of us do. But, you know, what you're talking about already and the questions that you're asking and the points you're raising, they're all so important. And, yeah, I guess like what you said about, you know, that article by Nicole Westmarden, Claire Magdalene, with Goliathis, Gopic Justice, that makes me think that maybe, you know, it could be about accountability and not necessarily punishment. Obviously, you know, I'm not trying to force my own perspective onto anyone, especially not survivors and what justice can we look like? But I guess when we're talking more broadly, that's something that comes to mind that what are the forms of justice and accountability for perpetrators are there. Yeah. You know, now I have a really broad question for you and this is a very broad general sweeping question. So, what recommendations do you have for how we can prevent a deceptive sex in general? I mean, like, how we can just, I don't know, work towards preventing this from happening in the first place? Sure. But I mean, it is a broad question. It's also a different, I mean, it's a difficult question. I think, as opposed to this is where we need to ask questions about whose responsibility is it that parties, that people have the sort of information we take to be important. And that itself, of course, raises the question of again, of which kinds of information are, do we see as important? And one person typically has access to this information and the other party doesn't. And the way I've been talking probably makes clear that to some extent I'm in favour of laying the weight of responsibility on the party who has the information. So, you know, one sort of satisfying response would be aim where possible subject to a full-sum consideration of context to be open with people, right, your sexual partners. But of course, there's at least two people involved in sexual activity. And we might think the other person has some responsibility to try and find out more about their sexual partners. And certainly, this view, this kind of idea has been prevailed in the past, right? The idea that if you don't do enough checking about your partner, whether that's your sexual partner, your marriage partner, someone you get into a relationship with, it's kind of your fault if you are deceived or if you don't have the relevant information. Now, the issue with that is if we assume, if we assume it's wrong to deceive or fail to disclose certain kinds of information, this can seem quite victim blamey for one of a better word expression. And, you know, there's also obviously limits to how much we can find out about one another, especially in a digital dating age, you know, saw something recently about the pandemic and romance fraud. So if you, this, this term is used to describe conduct where someone tricks someone else into thinking that they're in love with them or they're in a relationship and then they convince them to give them some material benefit, usually money or something like that. So it's a, guess, a more traditional kind of fraud in the sense that they get an economic issue, usually kind of gay. But what the, in this is conversation, I saw unfolding about the pandemic and how this kind of conduct has increased. I saw, you know, there's this organization called Online Dating Association and they were, you know, kind of regulatory bodies, I suppose. I'm not sure if that's the right way to describe them. People who maybe could be, when it comes to online for a, they could be perhaps doing, could help with this situation. But, you know, in general, my hope is just talking about this issue and thinking about what might be wrong with the sets of sets. We can try and sort of nuance and clarify the expectations we have of one another. I mean, I want to encourage people to think critically about the meaning and potential consequences of this sort of conduct. And so I think, and also pragmatically, sort of, I think it's important we get clearer about what the laws demands actually are. Like I was saying, it's not necessary that clear right now. So being clear about what the law actually demands of us and thinking carefully about the justifiability of that to like, is it not just clear, but is it fair? Hmm. Hmm. Yeah, but really, really well said. And I guess also thinking about how this dies in with consent and thinking about, I don't know, affirmative consent. And it's, what's that's an interesting area to explore? I'm just wondering when you do all of this research and you're also through your other work, also looking at, you know, judgments and legal statutes and all of that and you're looking at, you know, all of these cases where, you know, all of these stories, all of these cases and how, you know, there's this miscarriage of justice and if not necessarily justice, there's you know, there's this element of deception and then there's this element of being wronged and that makes me think of how you balance your work with your emotional well-being and, you know, if any of this work is emotionally draining and how you balance your mental health with your work and the kind of change that you're trying to bring about. Oh, thanks. I mean, I think if I'm honest, this question would, I think if I were doing it in empirical work with, so obviously historical work is in some sense and is in an important sense empirical work, but if I were working directly with people who had been involved in this, I, I'm certain I would have a better answer to this because I think it would be much, much harder. I, I have been to talks with, you know, survivor activists and even in that context of being an audience member, it's extremely, it's extremely difficult to listen. It's important to listen, of course, but it's very difficult. But I think for me, I try not to be too detached about it because I think that in itself is not desirable, but at the same time, the work I do is primarily desk-based and so I think that does inevitably bring a degree of distance and makes it much less of an emotionally difficult experience than people who do work directly with really important work directly with victim survivors. So I think, I think other people who are on this podcast can maybe give insights into that bit better than I, than I may be curves. Yeah, but, but I mean still, like it's really, it's really admirable that you're looking at all of these areas that traditionally have not been taken seriously and, you know, there's this element of over, you know, there are big things to think about and that sort of frame of thinking where different forms of violence are ranked, you know, in terms of seriousness and, you know, I imagine that's frustrating to look at as well. So, you know, we're already really lucky that you're persisting with it and you're, you're looking at, you're coming up with different ways in which we can improve on this, improve on the gaps within the justice system at the moment. But, you know, last thing I want to ask you is, and I know that we're over time, so I'm really sorry about that, but last thing I want to ask you is what is one lesson that you want to take, that you want listeners to take away from what we've spoken about today and, you know, anything else that you feel is key for all of us. Thanks, as much as I think. What you've said in your last comments really echoes what I want to say as in answer to your last question. You're the one thing I guess I would like listeners to try and think about is or to take away from our conversation is that, you know, these questions about Deceptive sex and how the law should respond to it. Don't have, they don't have obvious answers. Answering them is certainly not a question of applying so-called common sense, which is something that gets said about this topic. These are deeply social and political questions. They require us to think carefully about why we value sex and in my view also intimacy more generally and and as you said a few times in our conversation who it is that get penalized when this kind of conduct is criminal offense. So I think That's it. This is tricky and I think people hopefully will engage with these questions and I think having a conversation about them is extremely important. Wow, that was that was a very very important note to end on. Thank you so much for that and thank you for your time today and for explaining all of these really convoluted concepts. So well, I mean it was just I feel like I've learned so much and now I have a bit of an understanding of, you know, what would what you're what you're looking at and these really important practical issues. So thank you so much for talking to me and thank you for your really, really powerful work. We're so lucky that you're doing this for us. Well, thank you for having me as me and it was a real pleasure to talk with you. Thank you. Thank you.