Rape Is Rape...Or Is It? Understanding Rape By Deception

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Representative Peter Koutoujian of Massachusetts said, “There is a myth that rape only happens in a dark alley by a stranger — this is not true.”

The way rape is depicted in the movies is statistically not how rape occurs. Rape is most often committed by someone that the victim knows. But what about someone the victim thinks they know? What if sex occurs because someone lies about who they are, and gains consent under a false identity?

In other words, a man could pretend to be single despite being married in order to get consent from a woman who would never have sex with a married man. This woman could become sexually involved with him, and could find out later that he is married. She thought she knew him, but she gave consent to the man he said he was, not the man he actually was.

This is called rape by “fraud in the inducement,” but in many states, including Representative Koutoujian’s state of Massachusetts, it is completely legal.

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How is this possible? Some claim that the legal definition of rape does not describe what happens in these incidents of consent gained through deception, alleging that force and threat of violence are necessary for this conviction.

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Each state handles rape cases differently, and in many states, it is still completely legal to lie about who you are to gain consent. This raises a lot of questions.

  • If you have to lie about who you are to gain consent, are you really getting consent?
  • Would the person have given consent if they knew who you really were?
  • Should the blame for the sexual act be on the person who was tricked or the person who lied?
  • Should victims have to painstakingly verify a person’s identity before consent, or should perpetrators be held responsible for being honest about who they are before gaining consent?
  • How will this affect online dating, where misrepresentations of self are rampant?
  • Does lying about whether or not you are married before you engage in consensual sex constitute rape?
  • Should having consensual sex under false identity be considered rape, or should it carry a less harsh label and sentencing like sexual misconduct?
  • Can rape only be rape if it was by physical force or threat of harm?
  • Most importantly, what do all of these questions say about America’s perception of rape?
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Unfortunately, many current rape laws leave these questions unanswered. The words used to describe rape in many state laws say that consensual sex gained by fraud in the inducement does not constitute rape. Specifically, a 2007 statute that would make sex by fraud in the inducement rape was voted down because it was deemed “too broad.”

It’s important to understand why the statute was thought to be too broad to understand how the American judicial system seems to make excuses for rapists.

“Too broad:” The case of Suliveres v. Commonwealth (2007)

In 2007 in Massachusetts, Alvin Suliveres entered the room of his brother’s girlfriend and initiated what he claims was consensual sex with her. She claims she was under the impression that the man initiating sex with her was her boyfriend returning from work.

The court documents for this case cite an earlier case, Commonwealth v. Karl Goldenberg (1959). In this case, a woman went to a doctor to have an abortion, and the doctor told the woman that he needed to have intercourse with her to help the process along. The woman, who was under the influence of drugs administered to her by the doctor, did not protest. The court ruled that “it is not rape when consent to sexual intercourse is obtained through fraud or deceit.” The court did not see lying as a substitute for use of force to obtain sex, and therefore, the incident could not be dubbed a rape.

Peter J. Koutoujian, 2007 representative and current Sheriff of Middlesex County, proposed a bill that would define consent gained by fraud as rape. Koutoujian and other legislators were careful in their proposal to differentiate between bragging to impress a potential partner and outright lying about major elements of one’s identity with the intent to gain consent. They used the term “reasonable person standard,” to clarify, saying that if a reasonable person would be able to rely on the depiction a person was portraying, and if this fraudulent portrayal was used to gain consent, then this would be considered fraudulent and actionable.

The bill was voted down, however, for being too broad. Some believe that the bill was voted down because it is not a priority to lawmakers in Massachusetts. Others believe that the bill was voted down because it would put men who pretend to be unmarried and gain consent under the identity of single men could be convicted as rapists.

However, one assemblyman in New Jersey recognizes that this is an injustice for victims of rape and sexual assault, and is doing something about it.

New Jersey Sexual Assault By Fraud Bill (2014)

New Jersey Assemblyman Troy Singleton proposed legislation two years ago to criminalize sexual consent gained by fraud. The assemblyman said, “Fraud invalidates any semblance of consent just as forcible sexual contact does. This legislation is designed to provide our state’s judiciary with another tool to assess situations where this occurs and potentially provide a legal remedy to those circumstances.”

However, no one has opted to cosponsor the bill, and the chances of it passing seem to be slim. Some believe that the hesitation comes from the slipperiness of the legislation. How much fabrication is too much? What is a big enough lie to be considered fraud? Should sleeping with a person under the false pretense that you are single be qualified as rape if the person finds out and decides to press charges?

For now, it seems that the only rape by deception charges one can bring to a person in America are if a person is impersonating a medical professional and gains consent, or if a man is impersonating a woman’s spouse and gains consent. If these are the only two provisions, what protects a man from being raped by a woman impersonating his wife or girlfriend? Similarly, what protects a woman from being raped by a man pretending to be her boyfriend?

Back To Basics

Despite most of the questions above being left unanswered by the judicial system, we’d like to clear up our stance on a few of them. Let’s revisit numbers 3 and 4 from our list of questions above.

  • Should the blame for the sexual act be on the person who was tricked or the person who lied?

We believe legislation should protect the victims of sexual abuse first and foremost. Therefore, victim-blaming is completely inappropriate at all times. We do not believe in blaming someone for being a victim of rape, we believe in blaming the rapist.

  • Should victims have to painstakingly verify a person’s identity before consent, or should perpetrator’s be held responsible for being honest about who they are before gaining consent?

We believe sex is a consensual act between two adults who freely choose to engage in this activity. This free choice comes with open and honest communication, and if one party chooses to be deceitful about who they are in order to gain consent, they are not allowing their partner to make an informed decision about consent.

Finally, the last question deserves a response:

“What do all of these questions say about America’s perception of rape?”

We believe that America has a long way to go with regard to rape laws and legislation, how victims are treated, and how the judicial system manages the legal proceedings of rape and sexual assault cases. Americans should not ask what the victim did to get raped. Instead, Americans must focus on preventing dangerous ideologies that make sexual violence the norm from spreading.

If you believe you have been affected by sexual assault as a result of someone’s fraudulent self-representation, we want to do everything in our power to help you get the justice you deserve. Please contact us for an anonymous consultation.

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