Identity Deception: A Critical History

This research project asks when, if ever, it is appropriate to punish a person who engages in identity deception (pretending to be someone they are not). Focussing on two areas of identity deception in particular - identity 'theft' and intimate deceptions (deceiving another in order to induce intimacy, e.g., in the form of a romantic relationship, sexual encounter or marriage) - the project examines how the criminal law is increasingly being used, and is increasingly being expected to be used, to penalise this kind of conduct. For example, in criminalising identity 'theft' as well as identity fraud, the law no longer requires that the victim actually suffer any loss or that the perpetrator make any gain, and a growing range of identity deceptions, including misleading another about one's gender and nationality, are now considered capable of undermining consent to sex.

Although distinct in many ways, these two developments represent an expansion of the criminal law's scope and a redrawing of the lines between law and morality and between deceptions that will be tolerated and those that will not. They also suggest a growing concern with protecting 'identity' via the criminal law: in both areas of identity deception, the perpetrator is punished for assuming a false identity and the identity of the victim is considered to be infringed - through misappropriation in the case of identity theft and through something closer to lack of respect in the case of intimate deceptions. On top of this, these developments represent an elision of traditional legal categories: in the case of identity 'theft', fraud and theft have become blurred and, in the case of intimate deceptions, fraud and sexual offences are becoming indistinguishable.

These changes have implications for a range of practices, from gender expression and self-identification to online activities such as dating and consumer activities, and they have important consequences for how we understand the legal categories that are used to respond to this kind of behaviour. Yet despite their significance, we lack any real understanding of the nature and extent of these developments; both the changes in the law's underpinnings, and the drivers of this change, remain obscure.

By tracing how law has responded to identity deception across the modern period (i.e. the 18th century to the present), and identifying the factors that have shaped these responses, this research project aims to understand how and why these changes have occurred and to identify what is at stake in the transformation. Answers to both of these questions are crucial in ensuring that the law moves forward in a justifiable and just manner. More specifically, the project will involve investigating how and why we have come to punish these forms of identity deception and how and why contemporary discourse about criminalising these kinds of deception has come to be structured around certain core themes (e.g. that victim autonomy is paramount) and assumptions (e.g. that criminal law is the best way to protect the interests at stake), often to the exclusion of others. By asking questions about how we have got to where we are, and what alternative normative resources and ethical frameworks we might have abandoned (or failed to explore) along the way, the project aims to transform and enrichen debates about how to conceptualise identity deception and how and when law ought to sanction this kind of conduct. This is not merely an academic exercise, however; these deliberations have important practical consequences for how law pursues justice. The project will therefore also aim to help shape how, and against whom, the law is applied in practice.

The proposed research has the potential to benefit a number of organisations and communities outside the academy.

Lawyers and policy makers will benefit from a richer and fuller understanding of current legal responses to identity deception and how they have come into being. My research will also bring to light alternative ways of dealing with these matters that have existed at different times, helping place contemporary laws, and the assumptions that underpin these laws, into a critical light. A contextualised, diachronic account of legal responses to identity deception will also show the social, political and ethical frameworks that have supported, and destabilised, different legal regimes. This information will help those who work to analyse, reform and apply the law by providing them with an enhanced set of resources for doing this, and a clear sense of what extra-legal factors are conducive to specific law and policy proposals. It is likely that third sector workers and activists who engage with groups for whom the prospect of criminalising identity deception is particularly troubling (e.g. trans communities and immigrants or asylum seekers) will also find this analysis beneficial to their work for similar reasons.

I will engage with these legal and third sector workers through holding public engagement events (e.g. at the WS Library and National Library Scotland) and inviting them along. I will also use my existing links with some of these bodies (e.g. the Scottish Law Commission, the Judicial Institute for Scotland and the Scottish Parliament) to communicate the findings of my research and offer to provide evidence and short papers on the topic. Finally, writing an opinion piece for History & Policy (a publication dedicated to putting historians and policy makers into conversation with one another) is a further way I will aim to ensure the findings of my research are available to these potential beneficiaries.

The topicality of the proposed research means that the findings are likely to benefit members of the general public. Identity construction, and the premium placed on interpersonal authenticity as it relates to identity, are issues that are implicated in a host of contemporary practices, such as gender expression and self-identification and online activities from dating to consumer activities. An appreciation of how the law responds to perceived deception in the course of these practices is therefore very relevant to a broad range of people. Through commissioning artistic responses to the project, and the issues it raises, and engaging in Ragged University talks in Scotland and England, I aim to gain more insight into how identity deception is perceived in contemporary society and also to communicate the findings of my research to a broad audience. The inclusion of artistic work is likely to be especially beneficial in this respect; art has a democratising effect, which stems from the fact that some of the impediments to linguistic dissemination (e.g. learning difficulties and language barriers) are irrelevant. I will also use a bespoke project website, where I will upload blog posts, short videos (including videos featuring the project artists) and display details of the project's progress and events, to reach as wide and diverse an audience as possible.