MENU

Reason.com

Free Minds & Free Markets

VOLOKH CONSPIRACY

Mostly law professors, blogging on whatever we please since 2002 · Hosted by The Washington Post, 2014-2017 · Hosted by Reason 2017 · Sometimes contrarian · Often libertarian · Always independent

Sex by Impersonation = Rape, Says Iowa Supreme Court

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

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.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • bernard11||

    I am puzzled by the idea that "fraud in the inducement" does not negate consent, at least in some cases.

    After all, consent will often be based on an expected benefit. To put it crassly, we may consent to something we find unappealing, because we expect to obtain a particular benefit. If the benefit is not forthcoming, then the consent seems to me to be invalid

    Consider the Bolsinger case. The boys consented because they expected a benefit - a medical checkup. They didn't get it. The point is not that they would not have consented had they known the true purpose, it's that they would not have consented - possibly - had they known there was no benefit, regardless of the true purpose.

  • Rossami||

    That approach doesn't work. Based on the facts reported, the boys did get a medical checkup. It may have been unnecessary and pretextual but nothing in the reported facts of that case says that they failed to get the (minimal) benefit they were promised.

    More to the point, that line of reasoning quickly becomes unmanageable. Did I consent to have sex with you because you said you were rich and I wanted the future benefit of pretty things (whether or not you actually promised those things)? What weight should a court apply to my subjective opinion of "benefit" and how would that possibly be measured? What if I consent to have sex because you say you're really good at it but I'm left dissatisfied? Where is the line between "fraud = criminal rape" and "mere puffery"? Do you really want the government so deeply in the bedroom that they can make such decisions?

  • TwelveInchPianist||

    "I am puzzled by the idea that "fraud in the inducement" does not negate consent..."

    Presumably this is because legislators and courts don't want to turn every lie that lovers tell each other into a felony.

  • bernard11||

    @TIP

    It doesn't have to cover all that. Nor does the action have to be put into the same criminal category as rape. Note that the dissent refers to "sexual abuse in the third degree," so presumably there are first and second degree versions as well.

    @Rossami,

    I don't see anything in the Bolsinger case that says they got a medical exam.

    What weight should a court apply to my subjective opinion of "benefit" and how would that possibly be measured?.

    I agree that this subjective expectation is not something that can be intelligently dealt with by the law. On the other hand, the victims in Bolsinger were explicitly told that the purpose was a medical exam. That's neither subjective nor vague. Similarly, in a case of impersonation it seems clear that there is a benefit. It may be subjective in some sense, do you really think it's poorly defined?

  • Rossami||

    Re-read the quoted decision, bernard. They got exactly what they were promised.

    I suspect that our disagreement is one of definition. A "medical exam" is an exam resulting in a medical outcome - a diagnosis. It is not merely an exam conducted by a competent medical professional. If you walk up to me on a campout and I look at the cut on your finger (you really should be more careful when you're whittling) and determine that a pressure bandage is needed, then I have performed a medical exam. If I then apply the pressure bandage, I have performed a medical procedure. Whether or not I am qualified to make that diagnosis or to perform that procedure is an entirely separate question both logically and legally.

    Back to Bolsinger. An exam was conducted. Presumably, no injuries or testicular cancer was found. That is unsurprising given the very low incidence of such injuries and/or cancers among youth. But a diagnosis of "healthy" is still a medical exam outcome. And it's still an outcome even if it's wrong or incompetently performed.

  • Malvolio||

    I think this is why _Bolsinger_ was decided wrongly.

    Supposed the boys had submitted to the exam by an incompetent doctor. They expected a benefit but did not receive it. Nobody would consider that rape.

    The crucial issue was the motivation of the malefactor: he was acting for the purpose of his own sexual gratification. That is a common distinction made in these sorts of laws and that makes it rape.

  • ReaderY||

    Donald T. says he is worth a billion dollars and has a 10 inch penis, but his is only worth 500 million and his penis is only six inches. Rape?

    John rents a luxury car for the weekend and blows his savings on fancy restaurants and hotels. He never says anything, but Jane gets an impression from his manner that he owns the car and this is his normal lifestyle. Rape?

    Traditionally objective force is an essential element of rape in no small part because people's subsequent regrets can affect their memories. And special situations like doctors, guardians, etc. were distinct special crimes whose definitions were based on the existence of special, and especially strong, statuses and duties, and not generic rape at all.

  • M.L.||

    Seems like you and bernard both have a point IMO. Identity fraud to induce sex (while difficult to establish factually) seems like something that should be punished as sexual abuse or similar. But I would think that forcible "rape" should be recognized as a more severe crime.

  • ||

    No, it shouldn't be treated as sexual assault or anything else simply because of the enormous potential for abuse. Do we really want trials where a supposed victim has to testify that at 11:30 p.m. at the bar the alleged aggressor made some fluff statement about his career or apartment?

  • Bubba Jones||

    Hmmm.

    I think there is an important difference between claiming to be "rich" and claiming to be "your boyfriend, Jeff." Susie isn't consenting to sleep with a class of people who are rich, and whose membership is open to interpretation. She is consenting to sleep with "Jeff" and he is demonstrably not "Jeff."

    On the other hand, what happens when someone claims to be "the drummer from Kiss"? Is that fraud in inducement or fraud in fact?

  • ||

    I agree with that. I interpreted M.L.'s statement to mean that we should punish the "fraud in the inducement," but if that's not the case, I take my response back.

  • bernard11||

    I think it depends on the inducement.

    "I'm your boyfriend, Jeff," is one thing, and "I'm a real rich guy" is something entirely different.

    This is why I said the whole inducement business is puzzling to me. That looks like the wrong dividing line.

  • Krayt||

    If someone asks if you are a god, you say, "YES!"

  • swood1000||

    I think there is an important difference between claiming to be "rich" and claiming to be "your boyfriend, Jeff."

    I'm not so sure I can see an important difference between saying that one has the identity "Jeff" and saying one has the identity "rich" when neither is true and where something in that identity definitely supplies the key. It could be put to the jury whether the defendant falsely induced the victim to believe that he was "rich."

    As Eugene put it, the question is one of policy as to whether the deception was "substantial enough to negate a prior consent." I agree with the dissent that "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," especially when other states have included it, and that in the absence of the announcement of policy by the legislature,

    "[F]or there to be actual consent, a woman must [agree] to the penetration of her body by a particular 'membrum virile,' . . . ; it is quite irrelevant whether she knows the 'real' identity of the owner thereof."
  • nonzenze||

    The term "rich" isn't an identifier with a clear and unambiguous resolution. Meanwhile, the labeling of all people is straightforwards and each person corresponds to exactly one such label.

    [ Pedants will note that name is probably not enough, and anyway you can legally change it. So the label here is not just name. Various information systems manage just fine to compute what it means to give a particular person a particular label. ]

  • swood1000||

    The term "rich" isn't an identifier with a clear and unambiguous resolution. Meanwhile, the labeling of all people is straightforwards and each person corresponds to exactly one such label.

    Well, it all depends on how he described his wealth. If he just made some general statements that could be construed in different ways then I would agree with you. Of course, in that case it's less likely that his wealth would have been of key importance to her. On the other hand if he described himself as a multi-millionaire and talked about his homes in Palm Beach and Malibu and his Maserati, then there would have been much less ambiguity.

  • M.L.||

    By identity fraud I meant impersonating someone's husband for example. Far fetched scenario but I guess it could happen.

    Meanwhile:

    Sex With 10 Year-Old by 20 Year-Old "Asylum Seeker" = Not Rape, Says Finland Court

  • Careless||

    Wow, there were two of these cases (refugees raping 10 year olds where courts refused to allow a rape conviction)?

  • Eugene Volokh||

    Just to be clear, the Finnish court apparently took the view that this was "aggravated sexual abuse of a minor" (and sentenced the defendant, who was apparently 23 years old, to "a three-year custodial sentence"), but that it did not legally qualify as "aggravated rape," because aggravated rape apparently requires violence, fear, or incapacitation. I don't know Finnish law, so I can't speak to whether this was an accurate application of that law; and I'm inclined to say that a 3-year term is too light for this offense. But the notion that there would be different grades of sexual offenses depending on whether violence, fear, or incapacitation were present -- even where 10-year-olds are involved -- and that some would be called "rape" and others "sexual abuse" strikes me as defensible.

  • M.L.||

    Thank you. I would agree with your views, but I would think there would be a natural strong presumption that sexual intercourse with a 10 year old necessarily involves at least some level of violence, fear, or incapacitation, and certainly "either violence or the threat of violence" or that the victim would be "unable to defend themselves or articulate their rejection of the attacker" (as stated in the link within the link).

  • Rev. Arthur L. Kirkland||

    Donald T. says he is worth a billion dollars and has a 10 inch penis, but his is only worth 500 million and his penis is only six inches.

    I would have guessed three. Have you seen those fingers? Or that thing atop the head?

    Or was that just more puffery?

  • Careless||

    Am I the only one who went into this wondering if "impersation" was some legal term I was completely unaware of? (yes, I googled to check)

    But it's apparently headline typo day at the VC.

  • Eugene Volokh||

    Yow, sorry! I'd like to say it's some sex slang that you're not cool enough to have heard yet, but I just mistyped.

  • Naaman Brown||

    To own up to an error, admit fault, and move on to substantive issues, is a mark of ethical demeanor.

    Or, one could create an Urban Dictionary entry for "impersation" under a pseudonym and cite that as an authority.

  • Eidde||

    Rapists are getting inspiration from medieval romances?

  • Eidde||

  • jdgalt1||

    Neither the decision quoted, nor the California law linked to, seems to clearly answer the question of whether Chris must actually lie that he is Jamie in order to be guilty of rape by impersonation. That is, what is the outcome of the case if Chris merely got into Pat's bed and passively allowed her to assume he was Jamie?

  • Ohio Farmer||

    I was hoping this post wasn't written by a lawyer. But then I saw that EV wrote it himself. Oh well. Here goes: THE COURT DID NOT SAY this was rape. It is not correct that in Iowa sexual assault is basically synonymous with rape. Rape is, according to the the Iowa Code, included in sexual assault, but not all sexual assault is rape. Rape is either first or second degree sexual assault, while engaging in sex "merely" without consent is third degree assault, a Class C felony.

    All squares are rectangles, but not all rectangle are squares.

  • swood1000||

    Rape is either first or second degree sexual assault, while engaging in sex "merely" without consent is third degree assault, a Class C felony.

    Where does it say in the Iowa Code that third degree sexual abuse is not categorized as rape?

    709.4 Sexual abuse in the third degree.
    1. A person commits sexual abuse in the third degree when the person performs a sex act under any of the following circumstances:
    a. The act is done by force or against the will of the other person, whether or not the other person is the person's spouse or is cohabiting with the person.
    b. The act is between persons who are not at the time cohabiting as husband and wife and if any of the following are true:
    (1) The other person is suffering from a mental defect or incapacity which precludes giving consent.
    (2) The other person is twelve or thirteen years of age. …

    Where does Iowa law say that these activities are not rape? How do you differentiate this from rape?

  • Ohio Farmer||

    You're right. Iowa classifies some rapes as 3rd degree sexual abuse. That still doesn't mean that all 3rd degree sexual assaults are rapes.

  • swood1000||

    That still doesn't mean that all 3rd degree sexual assaults are rapes.

    The word "rape" was found 28 times in the opinion and dissent, such as the following from the majority:

    Although the statute did not specifically provide for "rape by psychological coercion" within chapter 709, we explained "the legislature never intended to limit the circumstances that could be used to vitiate consent under the 'by force or against the will' standard." Id. at 144. Rather, the "against the will" element is deliberately broad and consciously designed to capture all circumstances when "there is an actual failure of consent."

    Why would the court use such language if it did not think it was considering whether the act in question constituted rape?

  • Ohio Farmer||

    You're right. I just can't get out of my head that rape requires force or the threat of force.

  • ReaderY||

    Sarah decides to let off steam in her marriage by going to a sex club and having anonymous encounters through holes in the wall. But then one day, she discovers that not only has her husband found out, the person on the other side of the wall is her husband.

    Rape?

  • swood1000||

    But Sarah consented to sex with the person on the other side of the wall, and that's who she had sex with. But what if Sarah stipulated to all concerned that she was only consenting to sex with a stranger? That would make it look more like the current case.

  • ReaderY||

    Assume the point of the exercise was to have sex with someone other than her husband.

  • Careless||

    You'd also have to add conditions like him knowing that's what she was doing

  • swood1000||

    You'd also have to add conditions like him knowing that's what she was doing

    Right. There needs to be some fraud involved. Also, if the man knows that the woman is making certain false assumptions about him does this make his conduct fraudulent? Did he represent himself as anybody other than the person on the other side of the wall?

    If a woman in a Cambridge bar assumes without being told so that she is going home with a Harvard law student (because he is in a group, all the rest of whom claimed to be Harvard law students) does the man's mere knowledge of this render him a rapist if he is in fact a homeless high school drop-out?

  • TwelveInchPianist||

    Let's say that there's a sign above the hole that says, "Try something new!"

  • swood1000||

    Sex with one's husband through a hole in a wall would probably be something new.

  • Lee Moore||

    I doubt it. Sarah is not presented as a hidebound hausfrau.

  • TheAmazingEmu||

    I think this is a very tricky line. There's a lot of different examples that seem to come up. Sex with the promise to marry without ever intending to follow through is one example. There was a case in Israel where an Arab man told the other person he was Jewish and was charged with rape. There's the Julian Assange thing where he supposedly told the other person that he was wearing a condom and apparently wasn't (not sure I entirely follow that). Of the three, the only one that feels like it could be rape is the third one and that's only because of the added risk of pregnancy or disease. Saying that you don't have a communicable disease is also a problem, but it's normally a separate crime.

    To me, the line drawing is never going to be perfect, but, at least, the cases of impersonating someone else feel sufficiently rare that it's a fairly easy one to pick without too many slippery slope arguments.

  • Careless||

    EV's post on the Israel case http://volokh.com/2010/10/07/i.....aud-cases/

  • Burkhard||

    From the nation where such a rape is part of the founding myth (Uther Pendragon asking Merlin to make him look like Gorlois) , this was settled back in 1884 in R v Dee, which overturned R v Jackson (1822), also a burglary-with-rape case. While muddying the waters a bit (does only impersonation of husband count?) the judges argue that deception as to identity had always in common law negated consent, making analogies from fraud and theft law The case also brought up a similar issue to Eugene's last point - in the previous cases alternative charges of burglary and assault were brought, but as May CJ argued, these too would be negated by consent (this of course before R v Brown).

  • swood1000||

    One is inclined to agree with the dissent that

    The ambiguity here is whether "against the will of the other" encompasses deception. Our legislature has not provided for sexual abuse by deception in section 709.1(1). We must not write words into the statute.

    The dissent then goes on to cite legislation from other states, some of which specifically refers to the victim submitting under the belief that "the person committing the act is someone known to the victim other than the accused, and this belief is induced by any artifice, pretense…" However, some states simply refer to the offense taking place "where consent was obtained by the use of any fraud or artifice," which seems to open it up to "he said he'd call me the next day but he had no intention of calling me."

    I think I also tend to agree with the dissent that this was in fact a case of fraud in the inducement, since it was not a misrepresentation of the nature of the act itself, but rather of the facts surrounding the act.

  • bernard11||

    Whether you are right or wrong about "fraud in the inducement" seems to me to be irrelevant to any non-legalistic analysis.

    The distinction itself is, to my non-legal brain, irrelevant.

    (I have said before, and repeat, that I am glad I never learned to "think like a lawyer.")

  • swood1000||

    Whether you are right or wrong about "fraud in the inducement" seems to me to be irrelevant to any non-legalistic analysis.

    As Eugene pointed out, "fraud in the inducement" is simply a label we attached to a set of facts when we adopt the policy that the deception shown was not substantial enough to negate a prior consent. I choose that policy when presented with those facts because (a) the legislature specified consent as the critical element, not deception as some other states have, and (b) I don't see any principled way of distinguishing deception as to one's identity as a particular individual and deception as to one's identity as "rich" or "powerful" or any number of other attributes without which there would have been no consent.

  • Lee Moore||

    Life was so much more straightforward when fornication was illegal. You could convict both of them for fornication, or if the women was married, convict the deceiver for fornication and acquit her for being clueless.

    Anyway how does this deceit-as-to-the-identity thing work with fake doctors, who certainly exist. It seems to me pretty hard to argue that Mrs A has not consented to "Dr" D laying hands on her. He has done exactly what he said he was going to, and exactly what she was expecting him to do. He is just missing a qualification. It seems hard to separate this from a lover''s false claims to be rich.

    As a policy matter, i think it would be best to leave this sort of thing to the legislature. Ex post facto judicial legislation is seldom pretty.

  • swood1000||

    Life was so much more straightforward when fornication was illegal.

    Or at least before the sexual revolution got into full swing. Along with the greater sexual license came a greater risk of an insincere partner, disease, etc. Certainly one can almost eliminate any risk by only going to bed with a spouse. If one chooses a riskier path perhaps it is not unjust for him or her to bear some of the burden of the additional risk. Caveat emptor, at least in the gray areas.

  • David Friedman||

    So if we accept one version of the King Arthur story, Arthur was the result of rape of Igraine by Uther, provided by Merlin with the appearance of Igraine's husband.

  • markm23||

    Perhaps the laws on obtaining sex by misrepresentation should be analogous to the laws on false advertising and commercial fraud. Impersonation (whether it's sneaking into a woman's bed in the dark and letting her assume you're her husband, Uther's magical shape-change, or the Darth Vader mask scene in "Revenge of the Nerds") is like selling a cheap knockoff watch as a Rolex - and at least Uther's case is rape. I think I'd consider the other two cases as rape also, even though the guys may have never claimed to be someone else, or spoke at all. But is it fraud or only a trademark violation to mark the watch as "Bolex" and let customers misread that for themselves?

    OTOH, if I went out on the town with the $5,000 my grandmother left me and told women I was celebrating a "large" inheritance (I have known people so poor that 5 grand would seem "large" to them), it's like an advertisement that exaggerates the quality of the product - and that must be clearly legal, or most advertisers would be in prison.

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online