Rape in a Genderless Age
Amongst all the headline news this summer, an important story was overlooked. In May, 19-year-old Isimemen Etute was found not guilty of murdering 40-year-old Jerry Smith. The details of the case are: The two met on Tinder and met, and Smith performed oral sex on Etute. Etute later returned to Smith’s home and beat him to death.
Why, you might ask?
Because, as Etute discovered, there was, ahem, more than met the eye. Smith had posed on Tinder as a 21-year-old female physician named Angie, which is why Tinder “matched” him with Etute (18-years-old at the time). After the sexual encounter (conducted in complete darkness at Smith's insistence), Etute became suspicious. He returned to Smith’s home to determine whether or not Smith was actually female. Smith invited Etute inside, but again under cover of complete darkness. At that time, Etute used his cell phone flashlight to illuminate Smith and, to his horror, discovered Smith was a man. A physical fight ensued. Etute punched Smith several times and fled the area. He realized he had killed Smith only after police investigators told him. Etute told them that he fought Smith because Smith was reaching for a weapon. Investigators did find a knife under Smith’s mattress.
Etute was found not guilty after a jury agreed that Etute acted out of self-defense. But lost in the verdict is that Etute stated he felt “violated” at having been deceived by Smith into performing a sexual act with a person whom he reasonably thought was a female. This raises the question: Did Smith engage in rape by deception? And, if so, should there be legal protections for victims, like Etute, who are tricked into sex with perpetrators who lie about their biological sex?
Indeed, there should be such protections, but the path forward should be trod carefully. Attempts to criminalize rape by deception have largely failed, chiefly due to the vagueness of the attempted legislation. Laws that fail to specifically define strict parameters as to what constitutes deception, and as to what the express purpose is of the deception, are open to abuse and should not pass constitutional muster.
The main problem lies in the universal human vice in embellishing oneself, utilizing both exaggeration and omission, during our initial social introductions and familiarizations, with the eventual goal of consensual sexual interactions and intimate relationships. Or, as Chris Rock put it, “When you meet somebody for the first time, you’re not meeting them. You’re meeting their representative”.
But this doesn’t mean that rape by deception laws shouldn’t exist. It means that there needs to be agreed and defined understandings as to when such deception crosses the line from sleazy exploitation to downright criminality. UCLA law professor Eugene Volokh noted that, “under American law, sex for which consent is procured by a lie is generally a crime only (1) when the fraud relates to the nature of the act (i.e., the defendant claimed he was a doctor who was going to medically examine the woman’s genitals…or (2) in some states, when the defendant impersonated the woman’s husband”.
If I meet a girl and tell her I’m a wealthy CEO (or, like Trent from Swingers, a race car driver), and we end up having consensual sex based at least partly on the impression caused by my lie, this would be a despicable act on my part. But it isn’t a criminal act. Because, up to a certain point, it isn’t the responsibility of the state to determine, verify, and enforce the authenticity of every statement made between individual citizens, even if these statements are in the deceptive pursuit of unearned sexual favors.
But, as Volokh points out, there are certain circumstances where the deception crosses a legal threshold and becomes criminal if it results in consensual sex. The threshold itself is never defined… it might not even be possible to define it… but examples are specifically circumscribed. To this list should be amended the act of lying about one’s biological sex.
So why should rape by deception be criminal if the deception regards biological sex, but not other factors? Because there is something immutable and fundamental about biological sex in ways that cannot be said about status, wealth, or other social determinants. While such societal markers can shift, as can our attraction to such markers, our preferences for a specific biological sex constitute a much deeper core of who we are as sovereign individual beings and, indeed, how we “identify”. Finding out your sex partner lied about biological sex would seriously traumatize most people far more so than finding out they lied about their career goals or athletic prowess.
It seems bizarre that this point needs to be reiterated, but the reasons we choose with whom we have sexual relations is our business and our business alone. And since sex is an act more personal and consequential than perhaps any other human activity, any reason for refusal, even an immoral reason, is justified. If I’m trying to (or, more accurately, failing to) charm a girl, and for whatever reason she’s not into white guys, then that’s it. End of story. Maybe her preference stems from racism… or maybe she just has, like everybody else, personal preferences of which “types” attract her, which have nothing to do with hatred or bigotry. Not being attracted to me doesn’t mean she despises my very existence. Either way, it isn’t my right to shame, coerce, or deceive her into sex. Nor should she, or anyone, be required to provide reasons for refusal, to see if these reasons are deemed justifiable to the wokerati. No means no.
Ironically, the pro-LGBT argument has always been that sexual preference is not a choice, and people prefer to engage in intimate relations with certain people, and not others, because these preferences are pre-determined in our DNA. Odd, now, that the Left seeks to discredit these preferences as based not in genetics, but in discriminatory social constructs.
The argument against Etute, and victims like him, will be this: No rape-by-deception ever took place because Smith is, in fact, a woman. What’s more, you consented to have sex with Smith when you thought he was a woman. Only once you found out he was born a man and later presented as a woman did you get angry. This means that you don’t accept the notion that Smith is now a woman. This makes you worse than Hitler.
The Left will eventually pivot to argue that it was Smith’s right to have sex with Etute, and had Etute refused to do so, would have violated Smith’s civil rights. Had Etute refused sex with Smith expressly for the reason that Smith was a transgender woman, Etute would have engaged in a hate crime.
Too far-fetched, you say? One reason for the Left’s stunningly successful track record is the habit of rational humans to dismiss their propositions as dismissible insanity. But leftists aren’t known for letting petty annoyances like reason or representative democracy impede their vanity projects. So, they simply plow ahead, playing the long game, knowing the seeds of social discord they plant today will be worth losing, at worst, an upcoming election or two.
The argument from the Left is already taking shape in the LGBT community, where gays and lesbians are now being attacked as “transphobic bigots” and “Nazis” for not dating, respectively, transgender men and women. Female prisoners are being raped by male prisoners claiming to be transgender, yet the Handmaid’s Tale cosplayers do nothing.
Canadian transgender activist (and biological male) Jessica Yaniv sued female estheticians who refused to wax his testicles. He lost, but largely because his testimony was found to be contradictory and disingenuous, and because he had posted racist rants online against the victims. The British Columbian Human Rights Trial did little to address the rights of its citizens to not be forced to handle genitalia against their will.
And why would they? If you’re a bigot for opposing transgender men from competing in (and dominating) women’s sports, then doesn’t the same logic apply in all walks of life? By refusing to wax Jessica Yaniv’s testicles, are those female estheticians not “invalidating” his “truth”?
The Scientific American argues that biological sex is a social construct. Because if that’s true, then people cannot claim specific sexual preference for men or women, because “men” and “women” don’t exist. And if there is no scientific validity for gender-based preference, then there is no scientific validity for gender-based rejection. Your rejection must therefore be rooted in fear and hatred.
See where this is going?
If it seems contradictory that “my body, my choice” applies to pre-teens obtaining puberty blockers or abortions without parental consent, but not to anyone wishing to abstain from sexual intercourse with those to whom they’re not attracted, remember what the end goal of Leftism is. The goal is not transgender rights, just as it is now evident that it was never about gay rights, women’s rights, workers’ rights, or any other rights. The goal is complete and total political domination, with the necessary prerequisite destruction of the nuclear family, all decentralized civic institutions, and your control over your most intimate and personal sexual choices.
I’m not suggesting that we’re experiencing a deluge of transgendered rapists looking to trick their prey. I assume that most transgender people recognize the severe implications that rape by deception has on victims and would never seek to engage in such abusive behavior any more than anyone else. I’m suggesting that the Left is positioning its cannons for the next salvo against individual liberty, this time setting their sights on our sexual autonomy.
Such legislation against rape by deception is necessary so we don’t get beat to the punch, yet again. And it would have to be done at state level by GOP governors who have proven both trustworthy and effective. Don’t count on our congressional Republican “leaders” to do much. When they’re not chairing January 6th hearings or politely nudging Durham to start wrapping things up sometime this century, they remain in permanent deer-in-headlights mode against the Left’s incoming fire.
The Left plays for keeps. If they can sanctify rape, not even by force but by social pressure, what can’t they do?