The lie that invalidates sexual consent

limits to the criminalization of rape-by-fraud

Abstract

The legal systems of countries such as Germany and the United Kingdom only allow punishment for the practice of a sexual act through fraud in certain situations. Conversely, art. 215 of the Brazilian Penal Code is broad enough to allow punishment whenever fraud constitutes a condition without which sexual consent would not have been obtained. Both models deserve criticism: the former is generally guided by the classic distinction between fraud in the factum and fraud in the inducement, which lacks clarity and foundation, and the later reaches conducts that should not receive any attention from criminal law. The present article discusses and criticizes these models with the aim of investigating the range in which the legislator is, in principle, authorized to criminally prohibit sexual fraud. Based on the understanding of the negative and positive dimensions of the right to sexual autonomy and the reach of the duties related to them, it is proposed to interpret art. 215 in a way that restricts the hypotheses of incrimination to those included in three groups: 1) frauds regarding the sexual nature of the act, the type of sexual act, and the identity of the person with whom the sexual act is practiced; 2) frauds that exercise coercive pressure or involve exploitation of a special trust relationship; and 3) frauds with the potential to cause harm (physical, financial, or emotional).