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 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.