Sex Crimes

Sex by Impersonation = Rape, Says Iowa Supreme Court

An interesting question, which some other courts have answered otherwise.

|The Volokh Conspiracy |


Say that Chris lies about being unmarried in order to have sex with Pat. That is not rape, because Pat consented to the sex. But wait, the prosecutor says: Pat only consented to sex with an unmarried person, not to sex with a married person. Not a crime, American courts generally say.

Likewise for many other lies: Say, for instance, that Chris lies about having had no sexual partners in the past, in order to have sex with Pat (knowing that Pat would not have agreed to sex otherwise). That too is not rape, for the same reason.

Ah, but what if Chris goes into Pat's bedroom, where Pat is sleeping in the dark, and has sex with Pat pretending to be Jamie, someone Pat knows and wants to have sex with? That is indeed rape, the Iowa Supreme Court said State v. Kelso-Christy, though disagreeing with the view of some other courts. (The California case I cite in that post has since been overruled by California statute, but the Massachusetts case, Commonwealth v. Suliveres, has not.)

[S]ome forms of deception are substantial enough to negate a prior consent. ["]If an act is done that is different from the act the defendant said he would perform, this is fraud in fact. If the act is done as the defendant stated it would be, but it is for some collateral or ulterior purpose, this is fraud in the inducement. Fraud in fact vitiates consent; fraud in the inducement does not.

["I]f deception causes a misunderstanding as to the fact itself (fraud in the factum) there is no legally-recognized consent because what happened is not that for which consent was given; whereas consent induced by fraud is as effective as other consent, so far as direct and immediate legal consequences are concerned, if the deception relates not to the thing done but merely to some collateral matter (fraud in the inducement).["]

To illustrate, we observed that the distinction between fraud in fact and fraud in the inducement is commonly seen in cases in which a patient consents to a medical procedure only to discover that the doctor engaged in a sexual act. We favorably quoted a treatise that explained when a doctor informs the patient of his or her intention to engage in a sex act, but misrepresents its medical necessity, the doctor's misrepresentation is fraud in the inducement. In that instance, "the patient knew exactly what was to be done and was deceived only in regard to a collateral matter—the reason why it was to be done." Conversely, a doctor who obtains consent to a legitimate procedure, but then instead performs an undisclosed sexual act, engages in fraud in the factum, and any consent to the "procedure" is vitiated.

In [an earlier precedent, State v.] Bolsinger, we [concluded that] … a program supervisor in a state facility for delinquent boys repeatedly brought boys into a private room and touched their genitals. The supervisor informed the boys he was checking for injuries and testicular cancer and requested permission before conducting the "exam." The boys testified they would not have consented to the touching if they knew the true reason behind the request, which was the supervisor's sexual gratification.

Because the boys consented to the encounter, but were misled about the motivations behind it, we held the supervisor's conduct amounted to fraud in the inducement. Had the boys consented to a different body part being touched and the supervisor instead touched their genitals, the supervisor would have engaged in fraud in fact. However, because "the victims were touched in exactly the manner represented to them," the supervisor's deception was fraud in the inducement and did not undermine the boys' consents….

While the path we pursued in Bolsinger can be questioned, it is unnecessary to resolve if it was incorrectly decided. The Bolsinger rule did not contemplate situations in which one actor, through fraud or deception, induces another person to consent to an act under the false pretense the actor is a different person entirely.

Matters are collateral when they are not essential to the resolution of an issue, and motives and reasons behind the acts of defendants are generally viewed in our law to be collateral to the elements of the crime and are not part of the crime itself. Thus, it is understandable that deceptive motives can be viewed to be outside the rule that fraud vitiates consent in cases of sexual abuse. Even though the motive may have been fraudulent, the two actors ultimately engaged in the agreed to act.

Yet, consent to engage in a sexual act with one person is not consent to engage in the same act with another actor. Deception in this context is not collateral in any way, but goes to the very heart of the act. When a person is deceived as to who is performing the previously consented to act, the person ultimately experiences an entirely separate act than what was originally agreed to….

Kelso-Christy relies on the Massachusetts Supreme Court case, Suliveres v. Commonwealth (Mass. 2007). In Massachusetts, the crime of rape is defined as "sexual intercourse compelled 'by force and against [the] will' of the victim." In 1959, the Massachusetts Supreme Court concluded that "it is not rape when consent to sexual intercourse is obtained through fraud or deceit," as "'[f]raud cannot be allowed to supply the place of force which the statute makes mandatory'" (quoting Commonwealth v. Goldenberg, 155 N.E.2d 187, 192 (Mass. 1959)). At issue in Suliveres was whether the court should "overrule the Goldenberg decision and hold that misrepresentations can in fact substitute for the requisite force."

The court declined to overturn Goldenberg. The court explained that it has "never suggested that force is not an element of the crime, or that 'by force' is synonymous with lack of consent." The court was not free to remove elements of a crime. Further, Goldenberg had been the law for forty-eight years and yet the legislature failed to address the holding. Thus, in Massachusetts, the crime of rape requires proving the element of force, and deception as to the actual person performing the sex act cannot supplant the necessary statutory element of force. However, the court did conclude that, as in Goldenberg, deception as to the person performing the sex act was fraud in the inducement, as "there is no claim that the complainant did not know she was consenting to a sex act."

We disagree with the characterization of the conduct in Suliveres as fraud in the inducement. As in this case, the deception was no collateral matter, but went to the heart of the act. Furthermore, beyond that characterization, Suliveres rests entirely on the force element in the Massachusetts rape statute. The Iowa legislature eliminated the force requirement for sexual abuse in 1921. Thus, we are not adding or removing elements from the sexual abuse statute, but rather considering whether, in light of all the circumstances, Kelso-Christy intended to engage in sexual intercourse in the absence of consent. Reliance on Suliveres is therefore inapposite….

Unlike in Bolsinger, Kelso-Christy knew S.G. never consented to any physical contact with him, sexual or otherwise. Rather, Kelso-Christy knew S.G. wished to have sex with someone else and simply decided that fact gave him license to proceed, regardless of S.G.'s actual feelings or preferences. Because it has long been the law in Iowa that consent to sex with one man cannot imply consent to sex with another, Kelso-Christy could not have believed S.G. consented to a sexual encounter with him….

But Justices Wiggins and Appeal dissented, reasoning in part:

[In a New York case,] the court observed, "In general, in the absence of a statute, where a woman is capable of consenting and does consent to sexual intercourse, a man is not guilty of rape even though he obtained the consent through fraud or surprise." The court relied on basic rules of statutory construction to conclude the legislature had defined what constitutes lack of consent and had not included fraud or deception in the statute. In affirmatively stating "[c]ourts should avoid judicial legislation [,]" the court deferred to the language of the applicable statutes. The court reasoned, "It is a basic tenet of statutory law that where the legislature fails to include a matter within the scope of an act, its exclusion was intended." Thus, the court concluded the legislature intended to exclude fraud or impersonation cases from the definition of lack of consent, which is a necessary element to prove sexual misconduct under section § 130.20(1). at 887.

Iowa Code section § 709.1(1) does not provide for sexual abuse by deception. If the legislature wants to subsume fraudulently obtaining consent to sexual intercourse under the statutory definition of sexual abuse, then it knows how to do so. For example, other states have codified fraudulent inducement as a form of rape or sexual misconduct [citing variously written statutes from Alabama, California, Kansas, Michigan, Oklahoma, and Tennessee].

The majority should decide the instant case on the language of the statute, not on policy. We are not in a position to engage in judicial legislation. Moreover, we are not in a position to determine the wisdom and propriety of the legislature's actions on matters within its authority. Post-Bolsinger, the legislature did not amend section 709.4(1), which defines sexual abuse in the third degree, to include fraud in the inducement. Had the legislature intended to criminalize third-degree sexual abuse by fraud in the inducement, it would have amended section 709.4(1) after we concluded in Bolsinger that fraud in the inducement does not vitiate consent and therefore fraudulently procuring a sex act does not constitute sexual abuse in the third degree. [Section 709.4(1) reads, in relevant part, "A person commits sexual abuse in the third degree when the person performs a sex act … by force or against the will of the other person." -EV] …

I emphasize that I am not saying the defendant did not commit a wrongful act. Rather, because the allegations of fact do not contain all the necessary elements to find Kelso-Christy guilty of sexual abuse, the State could have charged the defendant with another crime.

Lastly, the majority's holding stands for the proposition that misrepresentation as to the whole in the course of seduction to achieve sexual intercourse constitutes sexual abuse because the misrepresentation may be material to the victim. Specifically as to fraud in the inducement, say for example, John meets a woman on the Internet supposedly named Jane. Jane represents herself on the Internet as a rich business owner who can advance John's career if they have sex.

In reality, Jane is really Cindy who is unemployed and likes to have casual sex with numerous partners. Cindy has been impersonating the identity of Jane to procure sex. John agrees to have sexual intercourse with Cindy based on Cindy's misrepresentations. Based on the majority's holding, fraud in the inducement does vitiate John's consent and permits the State to prosecute Jane for sexual abuse. Again, I emphasize such a holding is inconsistent with that of Bolsinger for the reasons [stated above].

My quick thought: The line between "fraud in the factum," which is enough to make consent invalid, and "fraud in the inducement," which is not enough, is an important line—but it is the label for a legal judgment, rather than a tool for making that judgment. The key question should be the one identified at the start of the excerpt from the majority opinion: whether the deception is "substantial enough to negate a prior consent." That is a policy judgment, based on our experience about just how important certain things are to most people in deciding whether to have sex, and also on how intrusive it would be to have the law police particular kinds of lies.

I'm inclined to say that a lying about whether you are a particular person known to the victim should indeed be treated as rape by fraud, while lying about one's sexual history or wealth or accomplishments (or even about one's current legal or romantic attachments) should not be. But that's a judgment call, rather than the application of some logical factum-vs.-inducement distinction.

Technical detail: As part of a plea agreement, the state agreed to charge Kelso-Christy only with burglary, not with sexual abuse; but burglary is defined as entering an occupied structure that is not open to the public without consent, with the intent to commit a felony—here sexual abuse. The question, then, came down to whether having sex with someone whose consent was prosecuted by a lie as to your identity is sexual abuse (basically the Iowa criminal law term for rape), and I have quoted the material that focuses on that.

Thanks to Howard Bashman (the invaluable How Appealing, which turned 16 yesterday) for the pointer.