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Mass Court: Sex By Fraud Isn't Rape

By Jeralyn, Section Court Decisions
Posted on Thu May 10, 2007 at 06:08:48 PM EST
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She went to bed one night, in the bedroom she shared with her boyfriend, and a man she thought was her boyfriend got into bed and had sex with her. It turned out the man was her boyfriend's brother who pretended to be her boyfriend.

Is that rape? The Massachusetts Supreme Court says no. Sex by fraud and deceit that does not involve force is not rape. The state's rape law requires force.

Victims rights groups will be upset by the decision. I think it is the correct legal ruling. All the legislature has to do is change the law if it thinks sex by trickery should be punishable as a sexual assault.

The opinion is here.

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    Mass Court: Sex By Fraud Isn't Rape | 15 comments (15 topical)

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    Apart from consent implications (5.00 / 1) (#1)
    by Edger on Thu May 10, 2007 at 06:20:09 PM EST
    and how violated (raped?) it probably(?) made her feel, something else doesn't ring right about this.

    Is relieving someone of their money by fraud and deceit that does not involve force not theft, in Massachusetts or elsewhere?

    Quick show of hands... (5.00 / 1) (#4)
    by roy on Thu May 10, 2007 at 06:42:50 PM EST
    Gentlemen, how many of you have never gotten sex by lying?  I'd ask the ladies, too, but I don't want to dispel my illusion that all my exes were super into me and not just afraid of being alone.

    "That dress doesn't make you look fat"

    "Of course I'll respect you in the morning"

    "I love you"

    "That's so interesting"

    Seriously, getting sex by imitating somebody's partner probably should be made illegal, but a broader sex-by-fraud ban might impact a lot of pretty ordinary romantic behavior.  It's not nice to tell your date you've only slept with "two or three" other people so they won't turn you out, but it shouldn't land you in jail.

    Outlawing Sex by Trickery (5.00 / 1) (#7)
    by kaleidescope on Fri May 11, 2007 at 03:21:14 AM EST
    That would be a scarry law.  What level of deceit would merit sanction?

    "rape" (none / 0) (#2)
    by diogenes on Thu May 10, 2007 at 06:29:24 PM EST
    If I tell someone I'm single and we have sex, and if I'm really married, is that sex by fraud too?  Is that punishable by the rape law?  Isn't there some responsibility for a person to know who she's having sex with (unless, presumably, it's an identical twin), but with the identical twin, hard cases really do make bad law.

    Have the MA Supremes been to South Africa? (none / 0) (#3)
    by 3waygeek on Thu May 10, 2007 at 06:36:31 PM EST
    A court there ruled that forced anal penetration of a male isn't rape.  Link courtesy of RawStory.

    Rationale (none / 0) (#5)
    by m on Thu May 10, 2007 at 07:22:09 PM EST
    This type of behavior is repugnant, but not all repugnant behavior is, or should be a crime.

    1. There is precedent for this case, this issue has been decided this way a number of times.

    2. Fraud is not mugging or armed robbery, and is not treated as such. Sex by such deceit is certainly not rape, and would require a new type of crime. Rape requires the use of force, or that the partner can not provide competent consent -- insane, inebriated, unconscious, under age, or in some cases under the control of another.

    3. How can you not know the person you are having sex with, is not your regular partner? Taste, smell, voice, feel, foreplay, body size/shape, and so on.


    I certainly agree with that last ... (none / 0) (#6)
    by Meteor Blades on Fri May 11, 2007 at 02:05:30 AM EST
    ...sentence. Kind of amazing.

    One question I have, however, is whether this law as interpreted by the Massachusetts Supremes is pretty much the same throughout the States. If I pretend in the dark to be my neighbor's husband come home three hours early from that trip out of town, if having sex with her isn't rape, what crime have I committed?

    Parent

    Well, (none / 0) (#10)
    by Deconstructionist on Fri May 11, 2007 at 09:13:22 AM EST
     arguably you have obtained services by false pretenses which could be a misdemeanor or felony depending on the value placed upon the services.

     this Massachussets case is interpreting a specific sexual offense  statute which makes (in broadly general terms) engaging in sexual acts without the CONSENT of the other a crime. Lack of consent results from forcible compulsion or incapacity to consent under most statutes.

     The Court here is merely saying the statute in question cannot be interpreted to make misrepresentation of identity a factor in finding lack of consent. There was no forcible compulsion and she was old enoguh and evidently mentally comptent to consent to the act. She did consent to the sex so the statute doesn't encmpass the conduct.

      The legislature could: a: add such misrepresentation to the "lack of consent" causes or enact a discrete statute criminalizing the conduct where engaging in sex where the consent is obtained by deceit is a crime. (that probably makes more logical and practical sense if one was inclined to change laws)

    Parent

    Precedent (none / 0) (#8)
    by Lacy on Fri May 11, 2007 at 06:49:29 AM EST
    In Tennessee, about 10 years ago, a guy in the Nashville area would call women, apparently at random, and in a low voice insinuate he was her love partner acting out his personal fantasy.  He would tell her the motel and room he was in, and that the lights would be out and the door fixed for her to just slip in.

    A number of women complied and they had sex.  He was eventually arrested and tried for rape. My recollection is that he was convicted under TN law on several counts, and went to prison.

    As the story says (none / 0) (#9)
    by Deconstructionist on Fri May 11, 2007 at 08:31:59 AM EST
     the State could enact a statute making "obtaining sexx by fraud" a criminal offense, and it could define the limits of that offense as to what types of misrepresentations as to what facts bring conduct within the statute.

      It would make for a lively floor debate in the legislature.

     It would be a hard law to draft. Even the "identity" issue is complex. Would it be just misrepresenting that you were a person in an established ntimate relationship with the "victim." Would it  include pretending to be someone not in a relationship with the victim but known personally by the victim and with whom  with whom the victim is more likely to have sex than you. Would it include pretending to be a "celebrity? Would it include just using a name other than your own if you belive the victim would not have sex with you if she knew your true identity but otherwise would? Would it include false representations about your ability or willingness to provide tangible or intangible benefit to the woman beyond the sex? Writing a bad check or using a phony credit card with a prostitute? The list is endless.

      Finally, this woman must come across as quite honest and naive. how many of us think you could get by with explaining to your spouse/partner that you thougt it was him/her? My wife's sister bears a very strong resemblance to my wife but I don't think the Mrs. would buy this one.

    Anyone (none / 0) (#11)
    by HK on Fri May 11, 2007 at 11:13:04 AM EST
    who has seen the film Consenting Adults has already had this debate...

    I personally feel that anyone would have to be very drunk/half asleep/a bit daft to not realise that the person they were having sex with was not their partner.  As m pointed out above, there are a lot of factors that could arise suspicion.  However, it does seem to raise some sort of consent issue and I'm sure any woman in this situation (although surely not many have been) would, as Edger said, feel violated.  This is one of those can of worms cases.

    Okay then, I'll get my own justice (none / 0) (#12)
    by Militarytracy on Fri May 11, 2007 at 12:24:21 PM EST
    and I'm fine with that.  Something tells me though that in the end the brother would have preferred a more professionally handled justice!

    My take on it (none / 0) (#13)
    by Jesse Gillespie on Fri May 11, 2007 at 08:13:52 PM EST
    I don't think there was really that much precedent on the issue here.  These cases are very rare.

    There are some circumstances where courts have recognized rape by fraud.  Probably the most famous case is Boro v. Superior Court, 163 Cal.App.3d 1224, in which a phony 'doctor' convinced a woman that she had a dangerous medical condition that needed to be treated by sex or else a dangerous operation.  The court held that when there was fraud as to the nature of the act that the victim consented to (in Boro, it she consented to medical, not sexual activity).  The California Court of Appeal called this "fraud in the factum," and held it vitiates consent.  "Fraud in the inducement," in which the fraud is to some fact not directly connected to the act ("I'm a billionaire") was not held to be grounds for rape.

    Mass. hadn't really had a case like this, so the question was (1) would they adopt that standard for this and (2) what category of fraud is involved.  It seems like they accept the standard, but take a very narrow view of what qualifies as fraud in the factum:

    Suliveres v. Com., WL 1345907:

    Compare Boro v. Superior Court, 163 Cal.App.3d 1224, 1228, 210 Cal.Rptr. 122 (1985) (fraud in factum where victim consents to doctor's penetration of her with medical instrument but he then penetrates her with his penis), with State v. Bolsinger, 709 N.W.2d 560, 564 (Iowa 2006) (fraud in inducement where defendant touched victims' genitals on pretext of medical examination because they were "touched in exactly the manner represented to them"). In the present case, there is no claim that the complainant did not know she was consenting to a sex act; rather, just as in the Goldenberg case, her consent was induced by fraud as to the circumstances surrounding the act. Thus, the present case involves "fraud in the inducement," as did Goldenberg, and is squarely controlled by that decision.

    I, personally, think this may be the right decision.  These kinds of cases are very rare.  It seems dangerous to tinker with the foundation of rape law in order to make it conform for fringe cases.  Ultimately, I think the main problem for the prosecution in these cases is not the force requirement (which in many jurisdictions only requires minor force) but the burden of proof.  It will always be hard to convince a jury beyond a reasonable doubt that you were actually duped into having sex with someone you thought was your boyfriend.  Had the dismissal not been granted, I don't think they would have gotten a conviction.

    what crime have I committed?

    Fraud, maybe?

    Also (none / 0) (#14)
    by Jesse Gillespie on Fri May 11, 2007 at 08:16:50 PM EST
    It seems that the Mass. court is mis-stating the facts for Boro.  I'm not sure why they did that.  Maybe they didn't read the case and are going on a brief, or maybe they wanted to manipulate it to conform to their preferred result.

    Parent
    Lying for Sex as Rape (none / 0) (#15)
    by JNagarya on Sat May 17, 2008 at 06:09:45 PM EST
    I see no mention of it, but considering current sexual politics:

    Such a statute would be neutral on its face, in its terms.  But the intent behind it, and its application, would not be.

    Consider: those behind such an amendment to the law would be predominately women -- "feminists" if you will.  And yet, how many women lie, if not for sex by means of sex -- to get what they want?

    If lying to get sex is rape, how about lying by means of sex in order to get something else?  Isn't that also fraud, at least a form of bait-and-switch?

    Mass Court: Sex By Fraud Isn't Rape | 15 comments (15 topical)

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