 | The examples and perspective in this article may not represent a worldwide view of the subject.(February 2019) |
Rape by deception is a situation in which the perpetrator deceives the victim into participating in a sexual act to which they would otherwise not have consented, had they not been deceived. Deception can occur in many forms, such as illusory perceptions, false statements, and false actions. [1] [2] [3]
In English law, the Court of Appeal in R v Linekar [1995] 3 All ER 69 73 ruled that the basis for such claims is "very narrow", ruling that refusing to pay for sexual services was a fraud, not rape. Cases demonstrating the law on consent as set out in the Sexual Offences Act 2003 include R v Assange (aka Assange v Swedish Prosecution Authority ) [Notes 1] (if consent was conditional on the use of the condom during intercourse, and the condition was deliberately disregarded, that was capable of amounting to rape), [5] R(F) v DPP (the sexual act was performed in a way that broke a condition agreed previously), [5] and R v McNally (deceit as to gender). [5]
Three notable cases where this issue arose:
In 2008, it was reported that a Massachusetts woman, unknowingly had sex with her boyfriend's brother in the dark basement that she was sleeping in. He could not be prosecuted because Massachusetts law requires that rape include the use of force. [14] [15] Massachusetts State House Representative Peter Koutoujian crafted rape-by-fraud legislation in response. [16]
On March 30, 1984, Daniel Kayton Boro called a Holiday Inn in South San Francisco. Mariana De Bella was a hotel clerk who answered the phone that morning. Boro told De Bella that he was "Dr. Stevens" and that he worked at Peninsula Hospital. Boro (pretending to be "Dr. Stevens") said that he had the results of her blood test and that she had contracted a dangerous, extremely infectious and possibly deadly disease from using public toilets. Boro went on to tell her that she could be sued for spreading the disease and that she had only two options for treatment. The first option he told her about was an extremely painful surgical procedure (which he described in graphic detail) that would cost $9,000 and require a six-week hospital stay that would not be covered by insurance. The second option, Boro said, was to have sexual intercourse with an anonymous "donor" who would administer a vaccine through sexual intercourse with her. The clerk agreed to the sexual intercourse and arranged to pay $1000 for it, believing it was the only choice she had.
Boro instructed her to check into a hotel room and call him when she was there. Boro then arrived at her room as the "donor". He told her to relax and then had sex with De Bella. Boro used no physical force and his victim knowingly allowed him to have sex with her because she believed (falsely) that her life was threatened if she did not receive this "treatment".
Boro was arrested at the hotel shortly after when the police arrived after being called by the victim's work supervisor. He was charged with rape, burglary, and grand larceny under various California statutes and convicted at trial. However, his conviction for rape was later overturned by the California Court on the grounds that California lacked a law against fraudulently inducing someone into sexual intercourse. His convictions for grand larceny and burglary were not overturned, however, because he fraudulently took $1000 from his victim. [17]
The California Legislature subsequently amended the rape statute in 1986 to include that a rape does in fact occur when a victim is not aware of the essential characteristics of the act (the sexual intercourse) due to the perpetrator's fraudulent representation that the sexual act served a professional purpose.
Boro was arrested again for the same scheme three years later. This time he was convicted of rape under the revised California statute. It is believed that Boro used this scheme to rape dozens of women over many years. [18]
In Norwalk, California, on February 20, 2009, Julio Morales sneaked into a sleeping 18-year-old woman's darkened bedroom after he saw her boyfriend leave. The woman said she awoke to the sensation of someone having sex with her and assumed it was her boyfriend. When a ray of light hit Morales's face, and the woman saw he was not her boyfriend, she fought back and Morales fled. The woman called her boyfriend, who then called the police.
Julio Morales was convicted of rape under two concepts. He was guilty of rape because he began having sex with the woman while she was still asleep and, therefore, unable to consent. He was also guilty of rape-by-fraud because he had impersonated the woman's boyfriend in order to gain her consent. However, an appellate court ruled that the lower court had misread the 1872 law criminalizing rape-by-fraud. The law stated a man is guilty of rape-by-fraud if he impersonates a woman's husband in order to get her consent. The woman in this case was not married, and Morales had impersonated her boyfriend, not her husband. Because of this one technicality, the appellate court overturned Morales' rape-by-trickery conviction in People vs. Morales in 2013.
To close this loophole in California's rape-by-fraud law, Assemblyman Katcho Achadjian (R-San Luis Obispo) – who tried to introduce a similar bill in 2011 – introduced Assembly Bill 65 and Senator Noreen Evans (D-Santa Rosa) introduced Senate Bill 59. The two bills quickly passed both houses without one dissenting vote and were signed into law by Governor Jerry Brown on September 9, 2013. Morales was later re-tried on the basis that the woman was asleep and re-convicted to three years in a state prison, which he had already served. [19] He was also required to register as a sex offender for the remainder of his life. [20]
A legal precedent in Israel classifying sex by deception as rape was set by the Supreme Court in a 2008 conviction of a man[ citation needed ] who posed as a government official and persuaded women to have sex with him by promising them state benefits. [21] [22] Another man, Eran Ben-Avraham, was convicted of fraud after having told a woman he was a neurosurgeon before she had sex with him. [22]
In 2010, a conviction of rape by deception drew international attention when it was first reported that a man deceived a woman into consensual sex within ten minutes of their first meeting by, according to the amended indictment, lying about being Jewish, unmarried, and interested in a long-term relationship. [23] (In later interviews, the man later denied the allegations that he lied, but such denials were not mentioned in his plea bargain. [24] [25] ) However, it was later reported that the charge had actually been the result of a plea bargain with the defendant in what had originally been a rape-by-force case where the records were sealed by the judge to protect the identity of the victim and avoid the cross-examination of her. (The sex was consensual according to one of the judges. [26] [27] ) The man was represented by the public defender's office, and the woman by the prosecution. Sabbar Kashur, an Israeli Arab Muslim resident of Jerusalem who was married with two children, accepted a plea bargain and an 18-month sentence on the reduced charge of rape by deception in 2010 after a period of incarceration and house arrest. Details later declassified showed that the initial charge was of violent rape, but the prosecution agreed to the reduced charge of rape by deception because of the victim's confused account and concern at facing another court appearance. They also indicated that the woman was emotionally disturbed and had a history of sexual abuse. [24] [27] The court sent the victim to a mental hospital for treatment and convicted Kashur on the lesser charge. [26] Prosecutors agreed to the plea bargain in order to spare the woman a long cross-examination that might undermine her evidence. [27] The public defender appealed the sentence to the Supreme Court, which postponed the sentence pending the appeal and freed Kashur from house arrest. [24] In 2012, the sentence was cut to 9 months by the Supreme Court. [25]
There is much debate surrounding the topic of transgender people who have sex with partners who are unaware of their trans identity, and whether this is categorized as rape by deception. One argument is that if a transgender person hides their biological sex from a person who would otherwise revoke consent if they knew of their trans identity, it fits the definition of rape by deception in countries like the United Kingdom and Israel. According to an article by University of Toronto Law faculty member Florence Ashley, others say that "arguments against this criminalisation have focused on the realness of trans people's genders: since trans men are men and trans women are women, it is not misleading for them to present as they do", and Ashley specifically focuses on the transgender individuals' lack of malicious intent to deceive in these encounters. Still, there are limitations to this position and do not fully account for what Ashley calls the "messiness" of gendered experiences. Additionally, debate on what makes a transgender person fully transitioned factors into the conversation around deceptive rape. Some may believe post-op transsexuals to be exempt from claims of rape by deception, due to having fully transitioned sex characteristics not noticeably different from a biological male or female. [28]
Legal theorist Alex Sharpe [29] offers a dissenting argument in "Queering Judgement: The Case of Gender Identity Fraud", [30] suggesting that an obligation to disclose undermines the privacy rights of transgender and gender non-conforming people.
Joseph Fischel suggested that the framing of the decision to not disclose as “fraud” not only subjugates the dignity and equality of transgender people, but also their sexual autonomy. [31] He suggests questioning the expectant conditions under which the 'deception' takes place:
The expectation that genitals correspond to gender identification is a normative one, a resolutely heteronormative one. That an expectation is socially normative need not entail that the failure of the expectation be legally actionable. [31]
According to transgender activist Sophie Cook, transgender people in the United Kingdom could face rape charges under section 2 of the Sexual Offences Act 2003 if they fail to disclose their gender history to their sexual partners. The Crown Prosecution Service stated that it would not automatically prosecute transgender individuals who had sex by deception and that each case would be treated separately. [32]
Similarly to arguments for bathroom bills, some feminist activists, especially gender critical feminists, claim that the legalisation of gender self-identification will result in cisgender people claiming a transgender identity in order to deceive a sexual partner who, due to their sexual orientation/preferences, would be otherwise unattainable, further complicating the matter. Julie Bindel criticised the practice, writing
But biological sex is the issue here, not gender identity. What else might be more relevant for a person to know in order to give informed consent to sex? What could be more reasonable to want to know? [33]
The 1984 film Revenge of the Nerds had the protagonist Lewis Skolnick engage in rape by deception after witnessing the character of Betty being turned down for sex by her boyfriend Stan during a costume party themed charity event. Lewis steals Stan's mask then follows Betty into a funhouse, where she consents to sex under the impression he is Stan. When Lewis exposes himself, Betty is not upset and praises Lewis for his sexual prowess. Thirty years after the film's debut, director Jeff Kanew issued a statement that at the time of production the scene was considered for deletion, albeit for timing. Kanew regrets not cutting that scene, saying he has an uncomfortable discussion with his daughter over the subject.
In the Book of Genesis, Jacob is tricked into laying with Leah instead of her sister Rachel. [34]
In the novel Trainspotting (and 1996 movie adaptation) by Scottish author Irvine Welsh, one of the main characters, Francis Begbei, is misled by a Transvestite in a nightclub into believing he is actually a woman and has sexual relations with him in a car outside only to discover it is infact a man by discovering his genitals.
In criminal law, consent may be used as an excuse and prevent the defendant from incurring liability for what was done.
The precise definitions of and punishments for aggravated sexual assault and aggravated rape vary by country and by legislature within a country.
The legal age of consent for sexual activity varies by jurisdiction across Asia. The specific activity engaged in or the gender of participants can also be relevant factors. Below is a discussion of the various laws dealing with this subject. The highlighted age refers to an age at or above which an individual can engage in unfettered sexual relations with another who is also at or above that age. Other variables, such as homosexual relations or close in age exceptions, may exist, and are noted when relevant.
In North America, the legal age of consent relating to sexual activity varies by jurisdiction.
Rape is a type of sexual assault initiated by one or more persons against another person without that person's consent. The act may be carried out by physical force, under threat or manipulation, by impersonation, or with a person who is incapable of giving valid consent.
The concept of rape, both as an abduction and in the sexual sense, makes its appearance in early religious texts.
Maouloud Baby v. State of Maryland is a Maryland state court case relating to the ability to withdraw sexual consent.
R v Collins 1973 QB 100 was a unanimous appeal in the Court of Appeal of England and Wales which examined the meaning of "enters as a trespasser" in the definition of burglary, where the separate legal questions of an invitation based on mistaken identity and extent of entry at the point of that beckoning or invitation to enter were in question.
Rape in the Philippines is considered a criminal offense. In Philippine jurisprudence, it is a heinous crime punishable by reclusión perpetua when committed against women. Rape of males is also legally recognized as rape by sexual assault, which is penalized by imprisonment of six to twelve years.
In common law jurisdictions, statutory rape is nonforcible sexual activity in which one of the individuals is below the age of consent. Although it usually refers to adults engaging in sexual contact with minors under the age of consent, it is a generic term, and very few jurisdictions use the actual term statutory rape in the language of statutes. In statutory rape, overt force or threat is usually not present. Statutory rape laws presume coercion because a minor or mentally disabled adult is legally incapable of giving consent to the act.
Rape is a statutory offence in England and Wales. The offence is created by section 1 of the Sexual Offences Act 2003:
(1) A person (A) commits an offence if—
(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.
(3) Sections 75 and 76 apply to an offence under this section.(4) A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for life.
DPP v Morgan[1975] UKHL 3 was a decision of the House of Lords which decided that an honest belief by a man that a woman with whom he was engaged with sexual intercourse was consenting was a defence to rape, irrespective of whether that belief was based on reasonable grounds. This case was superseded by the Sexual Offences Act 2003 which came into force on 1 May 2004.
Rape is the fourth most common crime against women in India. According to the 2021 annual report of the National Crime Records Bureau (NCRB), 31,677 rape cases were registered across the country, or an average of 86 cases daily, a rise from 2020 with 28,046 cases, while in 2019, 32,033 cases were registered. Of the total 31,677 rape cases, 28,147 of the rapes were committed by persons known to the victim. The share of victims who were minors or below 18 – the legal age of consent – stood at 10%.
Marital rape is illegal in all 50 US states, though the details of the offence vary by state.
Forced fatherhood or imposed paternity, occurs when a man becomes a father against his will or without his consent. It can include deception by a partner about her ability to get pregnant or use of contraceptives, birth control sabotage, paternity fraud and sexual assaults of males that result in pregnancy.
Non-consensual condom removal, or "stealthing", is the practice of a person removing a condom during sexual intercourse without consent, when their sex partner has only consented to condom-protected sex. Victims are exposed to potential sexually transmitted diseases (STDs) such as HIV/AIDS, or unwanted pregnancies. Such behaviour may be therefore regarded as sexual assault or rape, and sometimes as a form of reproductive coercion. As of 2020, stealthing is punishable as a form of sexual violence in some countries, such as Germany and the United Kingdom.
In Islam, human sexuality is governed by Islamic law, also known as Sharia. Accordingly, sexual violation is regarded as a violation of moral and divine law. Islam divides claims of sexual violation into 'divine rights' and 'interpersonal rights' : the former requiring divine punishment and the latter belonging to the more flexible human realm.
Rape in Alabama is currently defined across three sections of its Criminal Code: Definitions, Rape in the First Degree, and Rape in the Second Degree. Each section addresses components of the crime such as age, sentencing, the genders of the individuals involved, and the acts involved.
Sexual consent plays an important role in laws regarding rape, sexual assault and other forms of sexual violence. In a court of law, whether or not the alleged victim had freely given consent, and whether or not they were deemed to be capable of giving consent, can determine whether the alleged perpetrator is guilty of rape, sexual assault or some other form of sexual misconduct.
McNally v R [Crim 1051 (2013)], is a 2013 court decision in which the English and Wales Court of Appeals (EWCA) ruled that Scottish student Justine McNally's prior conviction of six counts of sexual assault by penetration would be upheld. McNally's sentence, however, was reduced. The convictions were made under the Sexual Offences Act 2003. Various other cases were explored to maintain the conviction, expanding the previously slim "rape by deception" laws. McNally v R was one of the first cases to display gender fraud or gender deception arguments.
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