The Legality of Lying

TW: discussions of rape

Last week, I was struck by an editorial in The New York Times that focused on sexual consent. In the piece, Dr. Roseanna Sommers, an assistant professor of law at the University of Michigan, puts forth a hypothetical situation:

Frank and Ellen meet at a night course and end up getting drinks together after class several times. The drinks start to feel like dates, so Ellen asks Frank if he is married, making it clear that adultery is a deal-breaker for her. Frank is married, but he lies and says he is single. The two go to bed. Is Frank guilty of rape?

At first blush, this seems ludicrous. Ellen clearly consented to have sex, so rape doesn’t seem like an appropriate charge. Some of this has to do with a common misperception about rape. Most people imagine rape to be a situation where a stranger holds a knife to a women’s throat and rips her clothes off, and invades her forcefully, violently, and painfully. But that’s a very narrow and limited definition. Two-thirds of rapes are committed by a person whom the victim knows. There are many different kinds of rape. In fact, it might be more useful to stop using rape as a catch-all term and instead classify these acts as sexual violence.

In the scenario above, where is the violence? Ellen consented to sex with Frank. He didn’t force her or coerce her. And according to Dr. Sommers, most people surveyed would agree that the scenario above does not classify as a criminal act. Is it shady? Sure. But a crime? No way.

This all brings me around to something I cannot stop thinking about: why is it legal to lie? To be certain, lying in specific situations IS illegal. You can’t lie to the cops. You can’t lie in court. You can’t lie on your taxes or on credit applications. You can’t lie about how much money is in your checking account when you write a check. Circumstances exist in which lying is not allowed and punishable by law. And yet, as a society, we seem to be OK with lying in much broader terms, this in spite of the majority of Americans believing that lying is immoral.

Why the disconnect? We have a number of civil penalties in place for people who slander or defame a person but it carries no criminality. Who does this benefit? Clearly, the wealthy and powerful have a big advantage over less powerful people. They can afford to hire lawyers and sue. They can also insulate themselves from lawsuits brought about by their own mistruths. This leaves the average person at a significant disadvantage.

Perhaps the most notorious liars are politicians. Whether it is spreading false information about election fraud or reclassifying COVID deaths, politicians can seemingly lie with impunity. The only real accountability they face is from voters. Convenient that the people who design the laws regarding truth-telling are fine with politicians being able to lie. Perhaps we should ask the beavers for their thoughts on tree preservation.

Let’s go back to Ellen and Frank. Which right is it more important to protect? Frank’s right to lie or Ellen’s right to have informed consent? Some would argue that protecting free speech is the most vital aspect of this scenario. Ellen should assume that Frank could be lying. It is naive to believe everything that another person tells you.

People lie all the time about all manner of things. We even have different classifications of lying, ranging from “harmless” white lies to outright fraud. As a society, we place a value upon the lies and weigh the subject of the lies against the repercussions. Telling your friend that her new haircut looks good when it looks awful probably doesn’t do much harm. Deceiving children into believing in Santa Claus is a fun tradition that allows for magic. But lying on your resume to land a job is a bit more serious. During interrogations, police officers are allowed to use deception, even if it results in a person’s Fifth Amendment rights being violated (the right not to incriminate oneself).

Where do we draw the line? Imagine a society where truth is enforced by law in all aspects of life. Who could even regulate such a thing? Or prove that a person is lying? It’s a legal quagmire that demands evidence that might not be able to be provided. It is easy to prove that Frank is married. How easy would it be to prove that he lied to Ellen? Unless she recorded their conversations or has an email to show otherwise it would be a case of he said/she said. Sound familiar?

In many cases of sexual violence, evidence can be a hard thing to get. This is partially due to a nationwide backlog of rape kit testing. In Minnesota alone, there are almost 5,000 kits currently waiting for processing. Nationwide the number is in the tens of thousands and that’s only a guess. Many states have not provided the information needed to measure such a thing.

Secondly, we have a cultural habit of blaming or disbelieving a victim of sexual assault. On average, every 73 seconds a person is sexually assaulted in America. Most of these people are women. We’ve seen disbelief play out again and again in the media. More than two dozen women have come forward to accuse former President Trump of sexual assault and rape. He has faced no repercussions from this. He is far from the only powerful male who has faced such accusations.

“They’re lying for attention.”

“They’re after his money.”

“They want to destroy a good man.”

“They have a case of buyer’s remorse.”

I have personally heard all manner of defense for men who mistreated and violated women. In college, there was a case of rape and sexual assault in which I knew the victims personally. It took place at a party hosted by one of the sports teams. Alcohol flowed like a river and a few of my female friends were impaired. One of them was groped a number of times without her consent. She ended up leaving the party. A different acquaintance did not and by the end of the night, she was taken advantage of by three men who “ran a train” on her. Over the next several months I watched her mental health decline as people impugned her character and attacked her, saying she was a slut who was just making it up. Other people tried to convince her not to say anything because they were friends with her rapists. She left school and the sports team was temporarily suspended. I don’t think any of her rapists were ever held accountable by the law.

Across the pond in the UK, there is a case unfolding involving a woman named Sarah Everard. I won’t get into the details too much about it here but if you want to learn more, this is a good place to start. She went missing while walking home earlier this month. And while there was an outpouring of support and concern, this was met in equal measure by people blaming and questioning the young woman’s judgment. Why was she walking alone? How much had she been drinking? What was she wearing? To women, these are all-too-familiar refrains anytime a woman is assaulted. it is a perverse version of victim-blaming, one that men simply cannot fathom. The backlash has been swift and a number of women have come forward to share their own stories and perspective. The BBC collected a few of them here.

This all to say that our societal views on consent still have a long way to go. As Dr. Sommers noted in her piece, the vast majority of people thought it was OK for a man to lie in order to get a woman to sleep with him. Ellen is not entitled to the truth and, by extension, informed consent. Having sex with someone is always a risk and she should not expect to be protected from such risks. We say this is the cost of having an open and free society but I would argue it is the result of men being the ones with power for the entirety of our history as a nation. If men were raped and assaulted at the same rate as women (or worse) I imagine there would be different protections in place. But since the power structure is dictated by the perpetrators, we have what you experience today.

Let’s talk about a less serious but still important version of lying that is widely accepted in America: advertising.

ALPHAILA.com

In the picture above, taken from a great Business Insider article on deceptive advertising, shows a disconnect we are all familiar with. In the ads, the products look great. And yet when you buy the actual thing, it is substandard, to say the least. Isn’t this a form of lying? If I were to advertise a clothes dryer on Craigslist and when you showed up to buy it, I handed you a ball of clothesline, wouldn’t you be pissed? Technically, they perform the same function: drying clothes. The deception comes in the manner in which the end result is attained.

This isn’t limited just to fast food. How many commercials do you see that are loaded with fine print? GET THIS CAR FOR NO MONEY DOWN AND $99 PER MONTH, the ad shouts at you. But below the flashing colors is a paragraph of legalese that basically refutes everything the ad claims. One of my favorite examples of this is when they have a “real person” review their product. And then, in the fine print, it says something along the lines of “paid actor”. It seems that as long as the ad-makers tell you (in verrrry small text that you cannot read without superpowers or a magnifying glass) that they are lying, they can say whatever they want. Shame on you for believing them.

That isn’t to say that companies haven’t been held financially responsible for misleading or false claims in advertising. Many have. But are the penalties faced by these corporations enough to prevent them from lying? If you know you’ll be fined $20 million for lying in an ad but you know that you’ll sell $200 million dollars worth of product, wouldn’t you just go ahead and lie? Heck, government fines can be a nice tax write-off. At worse, companies can consider it part of the cost of doing business.

Why do we tolerate this? Who does it benefit? Do you really think that Dannon would lie about their yogurt if the company faced real consequences like being shut down and having the Board of Directors imprisoned? LOL. How is this any different from writing a bad check or lying on a credit application? They are using deception to gain something of value. And The People are suspiciously silent on the matter.

I have brought this concept up to a number of friends and most of them seem to think that trying to regulate lying would be a slippery slope, especially when it comes to dating and sex. Lying seems to be part of the game. Interestingly, people do have lines though. Giving a fake name? Some people think that’s too far. Presenting a rented car as your own? Fine.

My point in all of this is that we need to consider who benefits from the lies that are allowed and legal. Why do we allow powerful corporations to lie to us? Why do we allow politicians to lie with impunity? Why do we accept that men will lie to women in order to sleep with them? Anytime a power structure is involved it is vital that citizens ask themselves a simple question, best expressed in Latin: cui prodest (who stands to gain?)

When it comes to lying to gain sexual consent, who gains from that? It’s not the women. When companies lie about their products, who gains from that? It’s not the consumer. In order to have a free and democratic society, we must ensure that truth is always protected and given preference over deception. Without it, the results are clear. Victims of sexual abuse go unheard, the perpetrators go unpunished, and corporations have a license to mislead.

Is this really the society we want to have? Or is it the one that has been forced upon us by powerful victimizers? I think the answer is clear.