Lies, anger and false equivalence in dating platform fraud

I recently argued in an article titled "Tinder Lies," which appeared in the Wake Forest Law Review, that lying on dating apps or websites about a fact material to another person's decision to have sex amounts to fraud and calls for a legal remedy. I proposed a regime that would enable victims of such sexual fraud to obtain in small claims court statutory damages of several thousand dollars, the exact amount pegged at what would keep the cases in small claims court in each respective jurisdiction.

Many who superficially examine the issue fail to see the trauma and opportunity costs -- which include repercussions to fertility if the fraud carries on for some time -- that result from perpetrators' willingness to override victims' ability to give consent meaningfully in the name of perpetrators' personal gratification. Even though some at Tinder take the issue of lying and impersonation on the apps seriously, others at the company found it amusing to claim as a (several days' premature) April Fools' joke that Tinder plans to introduce a height verification tool so that men cannot keep adding imaginary inches to their stature.

While no amount of deception on the dating apps is advisable, lies about height -- which are in any case easily discoverable upon meeting -- are not the major concern. As my work points out, not all lies are created equal, and the consequences from height-related lies pale in comparison to the aftermath of many marital-status and other major lies. This distinction gets lost in the shuffle when (generally male) critics of my proposal, and of what they thought was genuine height verification plans on the part of Tinder, repeat over and over that women lie about weight all the time.

There are multiple problems and assumptions embedded in that argument. First is that perhaps it is not that big a deal if men lie about things because women also lie. This, however, does not follow. For one, there are plenty of men and women who tell the truth on the apps, and it is not clear why they should suffer based on the actions of others. For another, some lies are both more easily discoverable and less fundamental to the average person's act of consent than others. As to the latter, people do not usually need to visit their therapist because they discover that they slept with someone who was an inch less tall or ten pounds heavier than they thought.

Focusing on small lies and on all genders' propensity to tell them trivializes the real harms from big lies. And unfortunately, in the case of declining fertility and due to men's preference for younger women, the average heterosexual woman has a lot more to lose than the average man by way of opportunity cost if she becomes embroiled not just in sex but in a prolonged romantic relationship with a fraudster.

What has also been striking in some responses is the level of anger with which some men have greeted what they deem my "feminist" -- to them, clearly a bad thing -- proposal and the issue of sexual fraud at large. A number of individuals appear to be concerned by overreach on the part of the legal system. While I am sympathetic to part of this instinct, that ship has sailed: The law is intricately involved in what constitutes a sexual offense and in many other intimate matters, such as when it comes to family law. Barring a "might makes right" society, this is ultimately unavoidable and desirable.

Those who make objections based on overreach also tend to turn a blind eye toward the many forms of financial and marketplace fraud against which the law already intervenes. Indeed, my proposal is significantly modeled on the ways in which courts weed out deceptive trademarks. I shaped it this way both due to the parallels between the economic marketplace and the dating marketplace and due to the fact that there is no principled reason that we should legally protect against a fraudulent soda purchase more than against fraudulent sexual intercourse.

This is also where purported or genuine concerns about free speech fail. What about United States v. Alvarez, one may ask, which stated that it was unconstitutional to criminalize under the Stolen Valor Act false statements about having earned a military medal? Those who raise that issue forget or do not realize that after Alvarez, Congress passed a new version of the Stolen Valor Act (in 2013) that specifies that the person committing fraud must have intended to gain a benefit or something of value. At least to this day, this statute remains standing and there appears to be no change on the horizon. In that vein, there is little question that sex would qualify as something of value, or a benefit, even if we were talking about a criminal law statute -- which we are not, because my proposal only contains a civil law remedy.

There are several possible explanations for the anger and resentment that some men seem to feel at my proposal that goes beyond mere disagreement. A sense of entitlement, rationalization of bad behavior perpetrated by oneself or by other men, and a perception that the harm arising from sexual fraud is not that serious belong in that category. More fundamentally, however, many men and more than a few women blame the victim for failing to be careful enough.

As an absolute argument against legal intervention, this is misguided. Many crimes and torts could have been prevented by the victim had the victim engaged in a greater degree of precaution, and yet that does not stop us from imposing legal penalties in those settings. The question is the optimal level of precaution at a societal level, not whether a victim could have done "more." For attributes that are important yet not easily ascertainable, such as marital status, it is almost definitely unreasonable to expect victims to pay for background checks or hire a private investigator every time they consider having sex with someone.

It is time for the law to take seriously the harms that arise from sexual fraud and to provide victims with the tools to fight back. In the name of sexual autonomy and dignity, both women and men have to be able to take individuals to task with whom they would not have had sex but for lies written on dating apps. Large-scale perpetrators in particular may thus finally change their tune.