Man Convicted of Rape for Lying About His Ethnicity
Yes, that’s what happened. A girl has sex with a guy she just met, and later finds out he is married with children and an Arab, to boot. So she complains to the police, and the guy gets sentenced to 18 months in prison for rape by deception (!) [Update/correction: http://petite-lambda.livejournal.com/18721.html]
Leaving aside the race issue (yes, I believe it did play a role, however there were similar cases where it didn’t -see the article), this case raises two extremely interesting questions:
1) What should be the legal definition of rape by deception? Is such a thing even possible?
2) Is lying to get someone laid a fraud in the legal sense? Should it be?
To the first glance, there isn’t such a thing as rape by deception - or, at least, shouldn’t be. Rape is sexual intercourse obtained against someone’s consent - via violence, or threats of violence (a related interesting question is whether threats other than violence still classify the encounter as rape, or it should be called differently). But deception? No. Not in the same league at all.
However, think about these examples: a man impersonating his twin brother in order to have sex with his brother’s wife. Or a man impersonating a doctor in order to perform a “colonoscopy” on someone (“And that wasn’t my finger…”) [sorry, couldn’t resist]. These acts are so grave and so damaging to the victim that they deserve, in my opinion, to be a subcategory of rape. And they are. Apparently, it is not just my opinion. That is why the term “rape by deception” was invented. But there all kinds of deceptions. People frequently lie to have sex. If you lie about your age, is it still rape? If you say “I love you” and don’t mean it - is it still rape? Clearly, it shouldn’t be. So, where to draw the line?
I think that a line should be drawn specifically for the cases I just mentioned. Yes, to actually have a law against impersonating someone’s significant other, and to have another law against impersonating a doctor (which, I think, already exists, so maybe even no need for that). And that’s it. All other kinds of deception with the purpose of sex shouldn’t fall under ‘rape’.
But should they be fraud in criminal law?
I don’t think so. In civil law, maybe. But not in criminal law. Sorry, but it will take me some time to explain my position:
I believe that fraud in criminal law should concern possessions and services. It should deal with monetary gain - or something that can be translated into monetary gain, such as prestige. Viewing sex the same way is a bit old-fashioned, to say the least. It reinforces the stereotype that sex is a service that a woman does to a man. Consider this scenario: Pete pays Cheryl, a prostitute, for one night as a birthday gift for his friend Buck. Bill, upon hearing about the arrangement, decides to take advantage of it and shows up on Cheryl’s door, claiming to be Buck. He spends the night. Did Bill commit fraud?
I think, yes. In this case sex was, indeed, a professional service - therefore, it is fraud, exactly as it would have been had Cheryl been a masseuse or a piano teacher.
Consider this scenario, mentioned in the article:
In 2008, the High Court of Justice set a precedent on rape by deception, rejecting an appeal of the rape conviction by Zvi Sleiman, who impersonated a senior official in the Housing Ministry whose wife worked in the National Insurance Institute. Sleiman told women he would get them an apartment and increased NII payments if they would sleep with him.
Rape? Duh, of course not. But is it fraud?
Yes. Although none of the women was a professional prostitute, they did engage in prostitution in this case, and they were defrauded of their time and efforts (not to mention the damage caused by violation of trust and broken hopes - the damage that all fraud victims suffer, in general).
However, when it comes to sex, the cases above are the exception, not the rule (although I know some people who would dispute it). Sex is part of human personal relations, not a good or a service. For example, should it be a criminally liable fraud to gain someone’s compassion by lies? Someone’s friendship? To lie in order to get someone to like you and to spend time with you? To open their heart to you? To marry you? Of course all these things are very wrong (ethically), but should they really be punishable in criminal law? I don’t think so. And I believe it should be exactly the same with sex. Sex is simply an activity that you share with people - usually, with people whom you like or love. It is not a service that you can be defrauded of.
Again, I do think that such behavior is wrong. In some cases, I think it would even make a good case in civil court (and not in others). [Btw., if you didn’t like that joke, consider this real case, which, imho, is very close…]