Rape, Consent, Deception, and the Blogosphere

[Preface: As anyone who has ever taught material relating to rape in class well knows, this is among the most sensitive of subjects to discuss. Add to this the way in which typed words lose the inflections and other subtleties of spoken language, and any post on rape threatens to come off as insensitive by accident. With that in mind I have tried to write this post in as sensitive a way as I can, but I also ask the reader to bear with me if their first instinct is to take something I have said the wrong way.  Instead please give it the most charitable of readings]

I have been fascinated on two levels by the recent blogospheric discussion of an Israeli Supreme Court case holding that an individual could be prosecuted for rape when he engaged in sex with a woman that was not the product of sex or coercion because he deceived her as to his religion/ethnicity (he was an Arab not a Jew) and his relationship intentions (to ‘hookup’ instead of looking for a serious relationship leading to marriage).

On the first level, I was intrigued as to why the case got so much interest (and the holding largely hostility) in the blogosphere. I think there are many reasons, but I want to put out two (related but distinct) provocative hypotheses for reaction from readers: (1) The case taps in to some long-suppressed doubts held by some reader on whether non-forced or non-coerced sex counts as rape. (2) The case disturbs because it implies that men can be raped during sex that is not forced or otherwise coerced, and while there are contexts in which many are prepared to believe in male rape (e.g., the prison context) they harbor gender-asymmetrical views of rape  outside those contexts.

One level down, into the actual holding of the case, one thing I find fascinating about this area of law (rape by deception) is that it requires constructing a concept of “essential facts” for which deception vitiates consent. To try and think about this, consider the following cases:

1. Ahmed deceives Beatrice about his religion and ethnicity claiming that he was an orthodox Jew when in fact he was a Muslim Arab. (The most recent Israeli case)

2. Jon convinces Daphne he is his identical twin, Jack, whom Daphne is dating, and Daphne sleeps with him inebriated after a long night of partying.  A real case along these lines in Canada had facts like these.

3. Dil deceives Fergus into believing Dil is a woman when they engage in anal sex.  In fact, Dil is actually a man (inspired by this film).

4. Bree is an M to F transgender person who now passes as a woman. She leads David to believe she was biologically born as a woman when they have sex.

5. Fernando is asked by Nick just before sex if Fernando is HIV positive. Fernando lies and says he was tested a month ago and was negative, when in fact he knows he is positive. They engage in oral sex. (Imagine no HIV transmission occurs. It is a separate question whether Fernando is guilty or should be guilty of a different offense, the question here is whether Nick has ben raped).)

6. Michelle convinces Robert she has had a hysterectomy before they engage in unprotected sex. In fact it is a lie. They do not conceive a child. (For discussion of cases where a child does come into being from these kind of conception by deception cases, see notes 37 and 38 of this paper of mine)

7. Sanjay deceives Mary into believe he is a neurosurgeon, when in fact he is a garbage collector. (Apparently there is Israeli case law treating this as rape by deception too).

8. George deceives Hillary into believing he is a card-carrying member of the Democratic party. In fact he is a card-carrying Republican.

My starting intuition is that 8 is clearly not rape, and 2 clearly is. If the test for consent being insufficient is “would the individual have engaged in sex with this person but for the deception,” then all these cases including 8 ought to be rape. That 8 is not rape suggests that cannot be the test, or I would have to revise my opinion on 8. If that is not the test, what is?  I don’t have an answer…but I am curious what others think both about the cases and about a differentiating principle to explain their views.

You may also like...

9 Responses

  1. John says:

    “Would a reasonable person holding the same beliefs have engaged in sex with this person but for the deception”, provides a distinction between the cases. There are quite a few republican-democrat relationships 🙂

  2. Ken Arromdee says:

    The difference seems to be how much the reluctance to have sex without the lie is a quirk of one particular person rather than a widespread trend. That Democrat personally refuses to have sex with Republicans, but there isn’t a substantial number of people who do so, even a substantial number of Democrats.

    Of course, this produces gray areas since “widespread” describes a range of popularity, not a yes or no situation.

  3. Jamie says:

    I wonder if some of the discomfort with identifying a point in the range comes from calling sex via deception ‘rape’.

    Does it become easier to think about if it is considered a flavor of fraud?

  4. shg says:

    You might want to take a look at the Marty “The Snowman” Evans case, decided by Judge Edward Greenfield in New York County, probably before most of the readers here were born.

    Deception was a historically recognized means of seduction, and hence reliance on a representation by a man attempting to seduce a woman was inherently unreasonable.

  5. ohwilleke says:

    Isn’t rape by deception precisely the kind of claim that was disavowed by Heart Balm statutes that ended civil causes of action like alienation of affections, criminal conversation, seduction, and breach of contact to marry? (A handful of states do still have these statutes and routinely apply them.)

    Similarly, outside Roman Catholic canon law in the United States, the tendency has been to narrow the grounds for annulments, in favor of finding that couples are married and then allowing them to divorce, and to limit the time periods in which annulments can be obtained. This too suggests that the notion of rape by deception is disfavored.

    None of the eight examples would constitute sexual assault under Colorado law (Section 18-3-402, Colorado Revised Statutes), which acknowledges deception as a basis for a sexual assault charge only when the deception is used to create that false believe that the sexual activity is (1) with a spouse, (2) with someone who is lawfully searching that person while in a position of authority, or (3) with someone who is purporting to offer a medical service. All of these fraud, in turn, are used to create a belief that one is dealing with someone in a narrow class of legally recognized positions of trust with whom intimate contact is central to the relationship.

    This is the right rule of law in my opinion. Rape by deception should not be a proper charge in any of the eight examples given.

    The question in Example 2 should be whether the woman was so impaired that she could not consent to anyone, not deception. If capable of consent, the fact that it was indeed a different twin shouldn’t matter for criminal culpability.

    Example 4 was the prelude to the recent murder of trangender Angie Zapata in Northern Colorado, by her male companion the next morning, which produced a long prison sentence and a hate crime prosecution of the male companion. The fact that there was a claim of deception was, rightly so, legally irrelevant.

    Example 5 above may very well be a crime, but the essence of the crime is not rape, which is best defined as sex without “consent in the moment.” Some states have a crime of “prostitution with knowledge of being infected with acquired immune deficiency syndrome” and a “patronizing a prostitute with knowledge of being infected with acquired immune deficiency syndrome.”

    Knowingly attempting to infect someone with a deadly disease is arguably a form of attempted homicide, and knowingly attempting to infect someone with a serious non-deadly disease is arguably a form of assault. But, the fact that someone is put at grave risk of infection with a deadly disease in Example 5, without their knowledge, isn’t necessary any more serious because it was done as part of otherwise consensual sex, than it would have been if it was done as part of, for example, a consensual blood transfusion, and the absence of actual resulting infection is merely a distinction between a completed offense and an attempted one.

  6. JamesM says:

    If you switch the words White for Jewish and Black for Muslim you can see how racist number 1 is.

    It smacks of segregation in the America 80 years ago.

    Deception is part of subduction. If deception is the standard then any women who wears makeup or lipstick to cover her natural plain features is raping a man and should do 20 years in jail when found out. Of course if she is successful in the deception and entices him to marry her he is the one doing 20 to life.

    If you buy a tampon and it does not make you feel as carefree and pretty as the women in the advertisement, does that deception mean the manufacture rape you under the Israeli law?

  7. John David Galt says:

    It seems to me there are two errors being made here.

    First, in all of these hypothetical cases (and the ninth case you hint at parenthetically, “conception by deception”), the plaintiff was a competent adult, not drunk or drugged, and agreed to have sex. Thus, whatever you may feel about the morality of these kinds of deception, a crime of violence clearly has not taken place (except in case 5); and if the deceiver is going to be charged with anything, it should be fraud, not rape. To do otherwise devalues real rape victims. (Case 5 is an exception because it carries the risk of serious bodily injury or death to the victim.)

    Second, if we are going to extend (civil and/or criminal) fraud liability to an area as personal as sex, the court *must* require that the plaintiff prove some kind of real, measurable, non-negligible damage. (This is more important than in other kinds of fraud cases because judges, like other human beings, have strong personal feelings about sex and will have difficulty maintaining their objectivity, and some won’t even try.) Otherwise this law will only be another way for malicious people to use the courts as weapons in pointless personal feuds.

    That said, “conception by deception” *is* real damage if it causes the deceived person to become liable for child support. The welfare system, at least in the US, has created a whole “industry” of women who do this in order to live off the proceeds. We need to disincentivise this behavior by either denying them the right to collect child support, or taking the kid away and adopting it out.

  8. Anonymous person says:

    I was involved with a man for 3 years. Came to family parties, took me on vacations, slept at my home with my kids home. All this time I did not know he was married, I once even asked him.
    I can see how this could be a deception/fraud case, especially now that he is harrassing me for exposing the relationship.

  9. AEWHistory says:

    Given that it has since been made known that this was a plea-bargain, it has been wildly apparent to me how assumptive people’s arguments were both then and now thinking back months later. For instance, whether agree or disagree with the criteria–even if racist–a person has the right the determine with whom they choose to mate. I’d say that this goes doubly for women–and I am speaking as a man here–because of the risk of pregnancy and all that that implies. You have the right to have some idea with whom you’ve become intimate and, theoretically, should conception occur that you share some elements that you’ve deemed important. This is personal/cultural and so on. Let me provide an interesting example: a woman meets a man, likes him, and has sex with him. He claims he is an American, doesn’t seem to have an accent, but in fact he is merely in the USA for a prolonged period and is not from USA. She gets pregnant, he takes off. If she doesn’t even know WHAT country he is from–and probably not his real name to be honest–then he has effectively committed ‘rape thru deception’ by my figuring. Without this law, it allows for the wholesale usage of people and throwing them away. This has happened repeatedly throughout history, albeit in different times and under slightly different circumstances, but the results are often the same. After all, how many G.I.s left behind fatherless children every time the army has been stationed pretty much anywhere?