Does "Stealthing" Always Violate Consent?

Intuitively, how wrong it is to deceive someone into sex depends on the kind of deception that is used. If a man tells a woman that he is willing to use a condom and then deceptively removes the condom during sex (a practice called “stealthing”), it seems he has committed a serious moral wrong. Indeed, it seems that by deceiving the woman about his willingness to use a condom, he has actually violated her consent. However, if a man lies to a woman and tells her he’s a lawyer because he knows it will impress her, his act seems significantly less harmful—he has still deceived her into sex, but he hasn’t violated her consent. Tom Dougherty calls this intuition the Lenient Thesis. On the Lenient Thesis, only some kinds of deception used to get someone to sleep with you are seriously morally wrong because only some kinds of deception can invalidate consent. Other kinds of deception—while still wrong—are less wrong because they cannot invalidate consent.

Dougherty argues against this intuition in “Sex, Lies, and Consent” (2013). Dougherty contends, instead, that any lie can invalidate consent, and so can be seriously morally wrong. For Dougherty, deception undermines consent when it: (i) “concern[s] the sexual encounter”, and (ii) “concern[s] a deal breaker” (Dougherty 719), where a “deal breaker” is a “feature of the sexual encounter to which the other person’s will is opposed” (719). If someone is deceived about a deal breaker, they are deceived about an aspect of the sexual encounter that would have led them not to consent, had they known the truth.

When deception concerns a deal breaker, Dougherty thinks the deception renders the person’s consent morally invalid; it isn’t consent that counts. So, on Dougherty’s view, if a woman has a rule that she “only sleeps with lawyers”, then deceiving her into believing that you are a lawyer isn’t bad merely because you are lying to her—it is also bad because it means that, if you have sex with her, then you will have sex with her without her morally valid consent. Since having sex with someone without their consent is a serious moral wrong, Dougherty concludes, contra proponents of the Lenient Thesis, that even “run-of-the-mill” deception can be seriously morally wrong.

Responses to Dougherty have mostly focused on “false positives”—cases in which Dougherty will have to say that someone’s consent has been violated, even though, intuitively, no such serious wrong has occurred (see “Permissible Secrets” by Lazenby and Gabriel, 2017). However, I think Dougherty’s view will also have problems with false negatives—cases in which, intuitively, someone has had their consent invalidated, but Dougherty will have to say that they have not. Here’s an example:

A woman, Evelyn, and a man, Bryson, decide to have sex. The two agree to use a condom. However, halfway through having sex, Bryson takes the condom off—and he doesn’t tell Evelyn that he has done so. After they have sex, Evelyn realizes that Bryson has removed the condom without her knowledge and is unbothered; she would have consented to having sex with Bryson without a condom if he had only asked.

The most plausible analysis of this case is, I think, that Evelyn has not consented to sex with Bryson without a condom—how could she have? She had no idea it was happening! But on Dougherty’s view, Bryson’s secretive removal of the condom will not render the sex nonconsensual (at least in this particular instance) because while Bryson has deceived Evelyn, the deception does not concern one of Evelyn’s deal breakers—Evelyn would have consented to sex without a condom had Bryson only asked. Since the deception doesn’t concern a deal breaker for Evelyn, it is not the kind of deception that can render someone’s consent morally invalid on Dougherty’s view.

Thus, on Dougherty’s view, “stealthing” does not necessarily violate consent; it often will (since most people, unlike Evelyn, probably would care about whether a condom was used or not), but it doesn’t necessarily. This strikes me as strange—stealthing seems inherently nonconsensual to me. Since I think stealthing is inherently nonconsensual, I think this case presents a serious challenge to Dougherty’s view.