California is currently considering a bill that would expand the definition of rape to include the act of a perpetrator who secures a victim’s consent by impersonating his or her partner. The proposed law implicates important and difficult questions about what it takes to transform an act of sex into an act of rape, and what sorts of offenses ought to fall outside the category, even if they do represent harms of a different sort. In this column, I will identify, and attempt the beginning of an answer to, some of these questions.
People v. Morales
The inspiration for the bill that is currently being considered in California is the case of People v. Morales. In this case, a man named Julio Morales, according to the prosecution’s case, entered a sleeping woman’s darkened bedroom and initiated vaginal intercourse with her, though she remained asleep when he began. She woke up while Morales was still engaged in having intercourse with her, but she at first believed that it was her boyfriend who was having sex with her, because he had been by her side when she fell asleep.
When the woman realized that it was someone other than her boyfriend, however, according to the prosecution’s case, she tried unsuccessfully to push Morales away. She subsequently pressed charges against him.
The prosecution offered two independent theories on which it invited the jury to find the defendant guilty. One theory was that he knowingly had sex with a person who was asleep. A second theory was that he unlawfully impersonated her boyfriend to get her consent. The jury found him guilty.
On appeal, the defendant successfully argued that obtaining consent to sex by impersonating a victim’s partner qualifies as rape, under California law, only when the victim is married to her. Because the victim and her partner were an unmarried couple in this case, it followed that the “impersonation” theory of rape was legally unsupported, and the court reversed Morales’s conviction and remanded for a new trial. The court reasoned that the jury might have rested its verdict on the prohibited theory (of impersonation) rather than on the permissible theory (that she was asleep).
To avoid similar results in the future, and at the urging of the California court of appeal, members of the California legislature authored the bill that I mentioned at the start of this column, and that is currently under consideration, to extend the definition of rape to include obtaining consent by impersonating a victim’s lover.
Husbands, Boyfriends, and Rape
The first thing to say here, with respect to the law of rape, is that it ought to treat wives and girlfriends equally. The importance of this equation is most obvious when the perpetrator commits the sort of rape that is far more familiar than rape by impersonation: ordinary rape, in which there is either an express or implied threat, the use of physical force, or a failure to heed an expression of non-consent (also known as verbal resistance).
In the not-so-distant past, under the “marital rape exemption,” a man could perpetrate a rape against his wife without violating any law, but he enjoyed no similar exemption from the rape law with respect to his girlfriend (or any other potential victim). A famous statement by the Seventeenth Century English jurist Lord Hale offers a “rationale” for this longstanding gap in the law: “[T]he husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.”
In a case that came before the highest court in New York State in 1984, People v. Liberta, the New York Court of Appeals considered the validity of the marital rape exemption. In Liberta, a man was convicted of raping and forcibly sodomizing a woman to whom he had been married, but from whom he was separated pursuant to a court order of protection. The man, Mario Liberta, claimed, among other things, that the conviction violated his constitutional right to equal protection, because he was being burdened relative to a married man who, in the same circumstances, would have had resort to the “marital rape exemption.”
The New York Court of Appeals agreed that the marital rape exemption violated both federal and state constitutional guarantees of equal protection, though for reasons that differed from those articulated by the defendant. The court said that “[c]ertainly… a marriage license should not be viewed as a license for a husband to forcibly rape his wife with impunity. A married woman has the same right to control her own body as does an unmarried woman.” The court thus held that Mario Liberta was properly convicted of rape, and that the marital rape exemption would no longer apply in the future. A constitutionally underinclusive law, the court explained, could either be either expanded or stricken in its entirety. The court chose the former course, concluding that if the legislature had foreseen the invalidity of the exemption, then it would have opted for a prohibition without an exemption, rather than for no prohibition at all.
The New York court was right to condemn and invalidate the marital rape exemption. To the extent that the law of rape extends to impersonation at all, it ought accordingly to extend to impersonating anyone with whom the victim chose to be sexually involved. The special status for impersonating a husband plainly rests on a variety of related notions that have more than outlived their utility: (1) the only legitimate partner with whom a woman would choose to have sex is her husband; (2) when a woman willingly consents to have sex with someone to whom she is not married, she accordingly and thereby forfeits any right she would otherwise have had in the law’s protection against rape; and (3) rape is a crime defined more by the actors’ identity and relationship to each other than by behavior. In other words, the exact same behavior, under precisely the same circumstances, qualifies as rape only if the perpetrator lacks a privileged status with respect to the victim and the victim has been properly protective of her own sexual virtue.
These notions underlie not only the marital rape exemption but also the promiscuous evidentiary use by rape defendants of victims’ prior sexual history and “reputation” at rape trials. They account, as well, for other misogynistic legal conventions that collectively amount to a declaration that some women, despite their decision to refuse sex, have somehow and nonetheless “asked for it.”
What Is Rape?
As Professor Jed Rubenfeld explains in a very interesting and thought-provoking article to be published in the Yale Law Journal, our societal understanding of what makes rape a unique offense has undergone major changes over time. As a result, it may sometimes be difficult, at the margins, to decide whether a particular action ought to qualify for the designation “rape,” or whether it might instead properly fit into some distinct category. He aptly gives “rape by deception” as an example of this sort of problem.
As I described in greater detail here, “rape by deception” has sometimes been interpreted to include sexual intercourse that follows a material misrepresentation by one of the parties—an important lie that one of the parties tells the other to obtain consent to sex. In a famous case from several years ago, a man approached a woman in Israel and initiated a sexual relationship. The man gave the woman the impression that he was Jewish and single, but in fact, he was a married, Arab Palestinian man with children. The Israeli Supreme Court said, in an opinion that many condemned, that because the man deceived the woman about facts that influenced her decision to consent to sex, the sex that followed qualified as rape.
Part of what struck me, and many other people, as wrong about the Israeli Supreme Court’s ruling is that lying to obtain consent to sex seems categorically distinct from what we think of as the essence of rape. In the first case, both parties consent to have sex with each other (albeit on false pretenses); in the second, one of the parties disregards the non-consent of the other party. Consent on false pretenses seems, on its face, very different from non-consent, in some of the ways that an armed robbery seems very different from a con game.
In addition to our visceral sense that rape is categorically different from consent on false pretenses is the suspicion that a large number—if not a majority—of people have engaged in obtaining consent under false pretenses. That is, deceiving a potential sexual partner about one’s desirability is common in sexual interactions. People routinely wear perfume and deodorants that disguise their body odor; they wear makeup that disguises facial flaws or install hair plugs that disguise baldness; some color, straighten or curl their hair or undergo cosmetic surgery (including breast enhancement and reduction, liposuction, etc.). Many prospective sex partners would be turned off to sex with someone if they had the opportunity to see or smell the deceiving individual in all of his or her glory. Yet it would utterly trivialize the crime of rape to suggest that wearing hair plugs or using deodorant might convert consensual sex into rape.
To be sure, some misrepresentations and omissions in this area are reprehensible and even criminally reckless. An example would include falsely telling a female (consensual) sex partner that one has had a vasectomy, or that one is free of sexually transmitted diseases. Like other hazards to which people might wrongfully expose others, these damaging lies, too, may be civilly or criminally actionable. Nonetheless, even in these situations, the harm at issue is something quite distinct from the harm that is perpetrated in rape. Choosing to have sex with someone on false pretenses probably does not strike most of us as rape, even if it does represent a victimization of a different sort (and, in some cases, of a very serious sort).
Impersonation
Impersonation intuitively occupies a more rape-like category than do ordinary “rape by deception” scenarios. Unlike the pretense of beauty, pleasant smells, or the appearance of youth, the pretense that one is a particular person (other than oneself), a person with whom one’s target has decided to have sex, resonates more with the sort of violation that characterizes rape. It is not simply that we hypothesize the counterfactual, as we do with other lies – if she had known the truth, she would not have consented to have sex with this man. It is instead that at some level, she did not consent to have sex with this man. She consented to have sex with a different man, a distinct human being, who in fact was absent at the time. Essentially, in a situation in which a person wearing a blindfold invites her partner to have sex in her bedroom, but another man takes the opportunity to take her partner’s place, the offender is appropriating sexual intimacy that was not given to him at all, and he thus may be accurately characterized as a rapist.
The Morales Case Redux
In Morales, we have what I would describe as two distinct violations of a woman’s bodily integrity. First, the evidence suggests that Morales began having intercourse with his victim while she was still asleep, a condition in which she not only did not consent but could not have consented. Second, Morales apparently impersonated a man with whom the woman had an ongoing relationship, so that when the victim awoke, she (perhaps) consented to (what she thought was) sex with her boyfriend, due to the other man’s impersonation of him. The jury convicted Morales, on either one or the other of these theories. It is accordingly clear that Morales violated his victim’s bodily integrity in either or both of two ways, regardless of one’s view of “rape by deception” in non-impersonation scenarios. One accordingly hopes that on retrial, the defendant will not benefit from the fact that he may have engaged in two separate, independent violations of his victim, instead of only one. And if the new California law passes, then future defendants in Morales’s place will fare no better than the man who impersonates a woman’s husband, whether or not the woman was sleeping at the time.
So if a man told you he was divorced, and led you to believe you were getting married, and actually moved in with you, constitute “rape by deception”?
I feel it does based on the fact, I was not given the opportunity to say no. He also took gifts, and money from me. Our Maryland Judicial System did nothing for me. I was told by a judge, ” I was just a woman scorned” ! That’s like telling a rape victim she deserved to be raped.
I am not say it should be called “rape” by deception. However, I was violated, and feel as something was taken from me that he had no right to have. So call it “sex” by deception, then it truly is what its name calls it. Either way, some kind of law needs to take place to stop this from happening to women. It is buyer beware, but where can a woman go to research all kinds of details about a man before getting involved with him……nowhere! I would welcome any help on my situation from the law community on ways to have justice system help women like me.
Thanks for a perfect example of female entitlement.
“That’s like telling a rape victim she deserved to be raped.”
No, it isn’t. It’s not even close.
It’s like being told that the justice system is not your personal play thing, it is not a tool for you to get revenge on every fucking slight society throws your way.
The fact that this even found its way to a judge is incredible.
If lying to someone is going to be considered rape, then I and many others consider those chicken fillet like gel packets you stuff down your bra to be lies. Those heels? Lies. Those blue contacts? Lies. Those items of clothing you wear to enlarge, stretch, condense, lift, separate, reduce or “shape” other aspects of your body? Lies.
Lets keep playing this game until all men are in prison for crimes they didn’t commit and all women are in mental institutions for conditions that don’t exist.
Sounds awesome.
Well Woz Lee, I gather you’ve been disappointed when the women you’ve seduced have finally gotten their gear off?
Do you realise how obvious you’ve made it that you were only in it for the sex?
Did you make that plain to all these women? Did you make sure there was informed consent?
Or did you ply their heads full of lies and false promises?
Thanks for a perfect example of male entitlement.
This is no game.
Well Woz Lee, I gather you’ve been disappointed when the Women you’ve seduced have finally gotten their gear off?
Do you realise how obvious you’ve made it that you were only in it for the sex?
Did you make that plain to all these women? Did you make sure there was informed consent?
Or did you ply their heads full of lies and false promises?
Thanks for a perfect example of male entitlement.
This is no game.
I notice you failed to address any of his points. Let me remind you what the crux of his position is. If we first agree that laws should be applied equally. Wouldn’t you equally agree, that when a woman takes steps to beautify herself, she is indeed giving a false representation of who she is. She is in effect creating a falsehood, especially with all the methods a woman can employ to improve her looks. So these women who do take extreme measures, they are guilty of rape no?
Why are these laws only meant to protect women. like men can’t 1-be deceived into sex 2-not want to have sex with a particular woman 3-be raped. It’s sexist in that regard that people want these laws written to protect women and not just ALL PEOPLE!
Question.. If a sex worker is led to believe she is going to to be paid for sex, would that considered ‘rape by deception’?
http://escortcons.blogspot.com.au
Yes, but extremely difficult to prove. Justice results from proof, not from truth.
Rape by deception or fraud can result from both lies of identity and lies of intent. Unfortunately, the perpetrator’s intent at the time the lie was told is very difficult to prove in a courtroom.
Ironically, and in concert with your question, a statutory rapist can claim that an underage prostitute committed rape by fraud if they lied about their age. Their rape by fraud defense would excuse their subsequent action and exonerate them. Yet many states that allow a rape by fraud defense against charges of statutory rape fail to allow charges for the same offense in other cases.
Never ceases to amaze me the laws fems are trying to push. Women are a huge problem here in the US and are part of the reason our justice system is so screwed up. This is just another way to lock men up on bogus charges. There should be no question as to why the US has the most incarcerated population of any Nation with laws like this that get passed. These laws are designed to destroy men. The real crime is women pushing ridiculous laws like this, but that will be a crime faced in front of God. This life is short and the next is eternal.
Destroy men? Sorry I don’t agree. I was recently lured into a sexual affair by a man who was supposed to be a FRIEND of mine, he pretended to be a sweet guy that had broken up with his girlfriend and was looking to build a nice good life with someone, guess what, he turned out to be a manipulative, abusive guy who not only was still engaged and had no intention of breaking up, but also nearly beat the crap out of me in a fake sado-maso “session” in my own home, for he also pretended to be a Dom and had no idea, he confused sensual spanking with beating. If he would have told me the truth I would NEVER have consented to do sex with him, ever. I am a woman who is looking for a true partner, not casual sex and he KNEW THIS for he had known me for years. When I uncovered him, he just disappeared cowardly, after so much time of fake frienship.
My case is not crime, I know. BUT: if an incident like mine can leave scars for long time (you loose trust in everybody, beside the economic setback I had to face thanks to some details of the incident which nearly left me broke) then what about those people who live for many months or years with someone who is at the same time married to someone else, or just faking everything for the money and pretending to be someone of the same social status,? It must be devastating to find out one day that everything was a lie, the longer it lasted the worse. I think those people should be punished, and they are not only men, they can be women as well.
Yes I know many people of this sort say that we must have a “good time” in this life for it is short, there is no God, moral relativism, etc. but that momentary good time can mean long term hell to the people that fall prey to them. If someone believes in facing God after life then they seek honest relationships and not just crappy sex at any cost.
I think his point still stands, the legal system isn’t the solution to all ills, and attempts to make it so are hurting people.
There is and needs to be a an area where something can be bad, but not the jurisdiction of the legal system. Counterfactual’s probably fall into this area.
(except perhaps written signed legally binding contracts, which still should be and are limited to reliance on exchanges in writing.)
I think imposing such a law will be extremely beneficial to men.
This is why:
1. Men can learn to love and respect women this way
2. Men who have multiple sexual partners start to loose interest after sex out of fear of intimacy
3. If men do not learn how to empathize with women they cannot have healthy relationships and therefore happy marriages
4. If men can learn to commit to women STDs will not be so wide spread
5. If men will leave in a society where women know that they will be lied to for sex they will find it hard to make a woman trust and respect them
6. This way men can learn to be truthful
7. Men can learn to respect their bodies as well :)
I am looking at how decent women are being used as prostitutes and I am sad to see it, because people are not getting married anymore , people hate eachother and it is just sad.
I think women are not the victims of this in the end, as we all go trough moments of humiliation and get over it when men grow up with the idea that they are exempt from decency, they cannot have healthy relationships with women, and they pollute society.
As far as I can see this type of men ends up alone at 60 after a women came and took his house, trying to hid on 20 year olds. You can guess that pathetic that looks ?
Yea, I donno if anyone will read this XD
So much wrong with this….
1. Choosing and preferring not to marry doesnt mean you dont love or respect women. Marriage isnt for everyone and in alot of societies conveys more rights to one gender than another in alot of cases. Marriage is a lifestyle choice, not a moral choice. Alot of people, men and women included just dont like the idea. Its kind of unromantic to legally bind yourself to someone where it becomes a pain to leave them if you aren’t happy. Its much more romantic to choose day in and day out that a relationship with that person is where you want to be. It also keeps both parties from becoming complacent with their relationships. Not getting married is better for some couples than it is for others.
2. Having multiple partners does not imply a fear of intimacy. Intimacy can be experienced with more than one person through honesty and communication.
3. Men dont need to learn how to empathize with all women, just to be kind and caring to the ones they are intimate with.
4. It takes two to spread stds, mathematically speaking, it stands to reason that straight women are having just as much sex as straight men.
5. Women are going to want sex aswell as men. Women are also equally as capable of lying for sex. In alot of cases, women can misrepresent themselves to imply a marriage will be different than it ends up. Should those women be prosecuted for marriage by fraud?
6. Men know how to be truthful and in most cases they are. Sometimes truth can be through omission. If he hasn’t asked you to get married, maybe he just doesn’t want to marry you……no it cant be that, right? He must fear intimacy but is still willing to get naked and lay with you for hours on end and talk to you about his life…
7. Men have plenty of respect for their bodies in most cases. Liking sex and enjoying variety does not mean you dont respect your body. However, having sex with someone you dont actually like because you think they are rich is disrespecting your body. Most men wont sleep with women that they aren’t at all attracted to. Its when people sleep with someone that they are unattracted to that they are really disrespecting their body…..thats just gross.
Women aren’t being used as prostitutes. They dont have to sleep with anyone they dont want to. They are big girls and can do as they please. SEX IS NOT WOMENS GIFT TO MEN. IT DOES NOT ENTITLE THE WOMAN HAVING SEX TO ANY GOOD, SERVICE OR MARRIAGE in return for the sex. THAT WOULD BE TREATING WOMEN AS PROSTITUTES. Sex is a beautiful thing that both genders enjoy greatly and is something shared mutually by both people involved. It should be treated as such.
If there is a mistake in identity that someone abuses in order to get sex (ie pretending to be a womans husband or boyfriend for sex while she doesn’t know you are actually a completely different person) that should be rape. But if a woman sleeps with a man she doesn’t like just because she thinks he is rich then she is acting like a prostitute and has noone to blame but herself. She shouldn’t be able to send him to jail because “he wasn’t rich and i slept with him and didn’t get any money or marriage to a rich guy.”
Some men want to be single at 60, especially alot that focus alot on their career, their own businesses or those that like to travel. Some 20 year olds also are into older men, some aren’t. It seems like you are merely projecting your narrow moral views on everyone who might not share them. Lifestyles are a choice. There is no 1 right or wrong way to live. Men shouldn’t go to jail because they told a lie to hook up, just like women shouldn’t go to jail for statistically having much less sex after marriage. Or maybe people should just get to know eachother better before sleeping with eachother, or maybe they shouldn’t if thats what their into, but its thouldn’t at all be a matter for the courts. Peoples consentual sexual choices should not land them in jail. If you didn’t drug a woman, render her unconcious or use physical force or violent threats to get sex, its just simply not rape. Women are stronger than that, they have this thing called choice and they can use it freely. No need to run to a judge with every regretful decision.
To the author,
“In the first case, both parties consent to have sex with each other (albeit on false pretenses); in the second, one of the parties disregards the non-consent of the other party.”
I would suggest that in the first place there is no ‘informed consent’, in the second there is simply ‘no consent’.
Sex is a profoundly personal and invasive act, and therefore ‘informed consent’ should be the minimum obtained by both parties. Each should be informed so as to avoid possible unanticipated physical or psychological injury.
As free agents, individuals have a moral right to autonomy over their own bodies and to self-determination. Stupefying someone with lies is no different to stupefying them with drugs or alcohol – either way, its rape.
If a man lies to a woman to have certain sexual acts performed is it rape? Of course it is. She did not explicitly agree (say YES) to the outcome and consequences OR even worse – said Yes to having a one night stand.
When a man wants to use a woman, he never tells her (never mind asks) I am only interested in using your body for the night. Would he have said or asked – I’m only going to use you and/or your body for my sexual pleasure she would, in most cases, say NO!
The woman in turn believes they are going to have a relationship/are in a relationship/this couldn’t be a once off thing/he really cares for me/we have such a connection etc. and never realizes she is being used or might never see him again.
Women (almost) never agree to being used as a sexual objects! Men are totally aware of this!!
There are many sites giving men tips on how to get laid on first or second dates, even encouraging to look for women who are more vulnerable, or of certain age groups, not to spend money on her etc. Don’t fool yourselves, these men are sexual predators!
You might not be able to charge them with rape but it sure is some type of sexual assault.
I say this because I have a sister and a daughter!
What about wives who have been conned by their supposed faithful husbands??It is a major violation when a husband commits adultery but it is even more of a violation to a woman’s body when the husband pretends to be faithful and is having sex with his wife while in the process of committing adultery with other women. I know this from experience and it is a complete violation in which I feel that I have had been raped repeatedly because he stole my right to say no to him in the event of his adultery. There is no way I would have consented to have sex with him knowing he was having sex with other women. He stole his right to have sex with me after committing adultery with several women and he didn’t give me the right to consent or not to consent to have sex with him in the case of his adultery. Him having had sex with other women and then coming home and putting his other women in my body was an injustice and violation to my body and emotions. I was frauded for many years believing I was married to a faithful husband and was deceived sexually. So for you men that think this is a joke shame on you as such a thing is so damaging to a person who believes they are in a committed relationship. The most painful thing a woman can go through besides death of a child or loss of a beloved spouse is going through rape and adultery. Deceiving to be someone your are not is fraud if not criminal behavior. I suffered deep emotional grievance, depression, PTSD and the ability to trust is not there. I hope rape by deception is considered on various levels in the court systems because no man or woman deserve to take someone’s right to consent or not to consent in the event of lieing and manipulation which ultimately is fraud. I also hope it would help married men or women to think twice about adultery and violating the other’s spouse’s body to give them the right to consent to sex in the midst of adultery, if that right is taken away, it should be considered rape by deception!