The rise of Internet dating — in recent years especially through the use of mobile-based apps such as Tinder, Bumble, or Hinge — forces us to re-examine an old problem in the law: that of how to handle sexual fraud. Many people with romantic aspirations today meet individuals with whom they do not share friends or acquaintances, which allows predators to spin tales as to their true identities and engage in sexual relations through the use of deceit. Indeed, according to some studies, about 80% of individuals lie on at least some part of their online dating profiles, and a subset of those individuals tell lies that undermine the foundation of their sexual mates’ subsequent ability to give consent. Whether or how to criminalize this type of fraudulent behavior has been debated for some time, and the difficulties involved in prosecutions in this context have made the criminal law a fairly ineffective tool. Previous proposals for tort recovery have failed to gain many adherents for similar reasons. This Article seeks to strike a new path by proposing, first, that we harness the tools of trademark law to reduce search costs and deception in the dating marketplace just like we do in the economic marketplace. Second, it argues that we should use a streamlined process through small claims courts to discourage behaviors that may bring significant dignitary, emotional, and other harms to people’s lives. Last, it proposes the use of statutory damages to alleviate the difficulties in accurately gauging the remedy level for the harm from a given instance of sexual fraud. By providing recovery in cases of material lies like trademark law does in cases involving deceptive marks, this Article takes an important step toward aligning the legal framework of sexual fraud with those of other types of misrepresentation, incentivizing transparency in the increasingly murky dating world, and protecting individuals’ ability meaningfully to consent to sexual relations.
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