Wednesday, August 04, 2010

Rape By Deception?

In my column for this week, I discuss an Israeli criminal case in which the defendant was recently sentenced to 18 months imprisonment for "rape by deception."  The particular defendant deceived the victim by lying to her about his marital status and his religion (he led her to believe that he was single and Jewish, but was actually married and Palestinian Muslim).  The column takes up the question whether it is ever legitimate to call consensual sex "rape" because the perpetrator lied to bring about the victim's consent.

One hypothetical fact pattern that I did not discuss in the column is the subject of this post.  A woman, Lilith, wishes to have sex with a married man, Adam.  Adam, however, is committed to being faithful to his wife, Eve, and he has repeatedly shunned Lilith's advances.  One day, Lilith sees Eve leaving town for a trip and decides this is her big chance.  Lilith goes to a makeup and hair artist and with a picture of Eve and has herself -- her face, her hair, even her body -- made to look identical to Eve's.  She also wears the same perfumes that she knows Eve wears and buys clothes that match those Eve was wearing when she left the house.

That evening, Lilith visits Adam's home after he has gone to sleep. She is able to come in through an open window and climbs into Adam's bed.  She reaches out to him and wakes him, and Adam is surprised to find Eve there.  Lilith whispers, "It turned out the trip was postponed until tomorrow, so here I am!"  Lilith begins kissing Adam, who enthusiastically and ardently returns her advances.  The two have consensual sex.  The next morning, Lilith leaves, and Adam does not learn until several days later that it was not Eve who shared his bed that night.

By the definition of rape that I developed in my column -- where there is force or a threat or the lack of consent -- it would be inaccurate to describe Lilith as having raped Adam.  Adam consented to have sex with the woman in his bed.  The woman in his bed was Lilith.  In this case, however, the fraud by which Lilith induced Adam's consent does seem especially troubling in a rape-like way.  Let us examine why that might be.

It is not because the outcome is the worst possible outcome -- telling a partner that one is free of disease when one is actually carrying an incurably fatal S.T.D. would generally be far more devastating in its impact.  Yet that case seems less like a rape (though more like a homicide) than Lilith's case.  Because of Lilith's deception, it feels accurate to say that Adam consented only to have sex with Eve, his wife, and that Lilith therefore made him have sex with someone with whom he did not want to have sex.  It was, in that sense, as though Adam consented to have sex with Eve, and Lilith pulled Eve out of bed and put herself there while Adam's eyes were closed.  Consent is not a negotiable instrument.

But why couldn't the complainant in the Israeli case say the same thing?  She consented to have sex with a single, Jewish man, not with a married, Muslim man.  What makes that seem different, however, is that the Israeli woman knew that she was consenting to have sex with the particular man with whom she ultimately did have sex.  The fact that his marital status and religion were different from what he represented them to be doesn't make him an actual different person.  It just means that he had different traits from those he had said he had.  He was still he, in other words.

In the Lilith/Adam example, however, Lilith is not simply a woman who has different traits from Eve.  She is literally not Eve.  Since Adam consented to have sex only with Eve, a particular person, one could say that he never consented to have sex with Lilith.  This seems different from him consenting to Eve but not realizing that Eve is actually a Christian or a blonde or even afflicted with a contagious illness.

Am I splitting hairs?  Perhaps.  I concede that if a person's consent to have sex with someone who is there and who has done nothing to force or threaten the person precludes the charge of rape, then Lilith may not be charged with rape.  And if, on the other hand, fully consensual sex induced by lies about the perpetrator's identity could legitimately qualify as rape, then the difference between Lilith and the Palestinian man may be one of degree, rather than kind.

If I had to choose, I would prefer to say that Lilith is not a rapist than that the Palestinian man is.  But I do think the case for labeling Lilith's action a rape is far stronger, because Adam never consented to have sex with a woman who was not his wife.  I'm very interested in hearing people's reactions to this and other hypothetical examples posed in my column.


DF said...

Really interesting post. I think your Lilith example and the Israeli case are ultimately about the same in most important respects. While Lilith's deception may be more complete, in each case the perpetrator achieved sex with a partner by convincing the partner to have sex by means of deception.

The familiar crim law term for this is "fraud in the inducement," and in US jurisdictions it's usually not considered rape. By contrast, fraud in the factum is considered rape. The classic hypothetical for the latter is: Consider a doctor who tells a female patient that he is going to sedate her and, while she is unconscious, place an instrument into her vagina. The patient agrees, reasonably assuming that the doctor is referring to a medical instrument, but the doctor actually inserts his penis into the patient.

How is the doctor scenario different than either the Israel case or the Lilith hypothetical? The important distinction is that the Israeli woman and Adam both agreed to sex, but were deceived about the true identity of the perpetrators, while the patient did not understand herself to be agreeing to sex at all.

I think this highlights that the definition of rape has to follow from the core justification of the law: to prevent unconsented-to sex. This justification applies just as well to fraud in the factum as it does to standard rape by physical force. But it doesn't apply to the Israeli case or the Lilith/Adam hypothetical.

One might say, of course, that "consent" is legally constructed and might plausibly be extended to apply to consent not truthfully acquired, so that it would include fraud in the inducement. I think the main reason for this distinction is practical rather than principled. The Palestinian man and Lilith each seem like bad actors whose behavior we want to discourage. The concern, though, is that deceptive behavior in advance of sexual encounters (although likely not on the scale of either case) is, unfortunately, very commonplace. If we allowed partners who grew to regret a sexual encounter to claim that they had been raped when they discovered that their partner wasn't entirely who s/he had claimed to be, the number of plausible rape cases would skyrocket, and this might devalue rape law's core goal of preventing nonconsensual sex.

Kevin Jon Heller said...

There is a classic Australian case directly on point -- Papadimitropolous v R (1957) 98 CLR 249 -- in which the High Court held exactly what you argue, here in the context of a man who convinced a woman to sleep with him by pretending to get married to her (she did not speak English). According to the High Court, the fact that she would not have slept with a man who was not her husband did not mean that the sex was nonconsensual (and hence rape), because she knew she was having sex and she knew that she was having sex with this particular man.

That seems like the right outcome to me.

Ori Herstein said...

Great post.

The natural next step to acknowledging that the concept of “rape” includes cases of deception in personal-identity is asking what does “personal identity” mean here. The richer the notion of personal-identity, the more cases of deception-based consent would count as rape. Discussions of personal-identity over time tend towards narrow conceptions of identity. But there are richer conceptions of identity; of what makes people into “who they are.” When discussing people’s social and group attachments we usually tend towards richer accounts of identity. My favorite passages on this issue is Joespeh Raz’s:

". . . that when talking of ‘identity’ [we] do not mean the term in the sense in which it fixes the limits to the continuity of an object, or an object of a kind: is this pile of timber which made up Theseus’ boat Theseus’ boat still? We mean the identity revealed in answers to the question who am I? I am a man, an academic, a father, etc. These make me who I am. It is the identity that identity politics is about which is, in part, determined by our past actions and decisions. It is the identity which leads one to say: ‘Here I stand, I can do no other’, in the knowledge that one could if one wanted to, and yet one is speaking the truth." Value, Respect, and Attachment, 33 (2001).

Many of these additional cases will raise the problematic implications of identity politics partially suggested by the case mentioned in the post.

N.M.C. said...

These situations, to me, seem more similar to the archaic crime of seduction than rape. I could perhaps be mistaken as to the particular elements of a formal crime of seduction, but it seems to me that the permisability of the person achieving consent is the core issue in seduction, whereas the existence of consent itself is the core issue in rape. Seduction wasn't about trickery so much as an improper person (because consent could not be legally given to him) creating a temptation for sex (historically, a man making advances on another man's wife, when adultury was also a formal crime), but I think you could fit an instance of impersonation or trickery into the elements of seduction without stretching them too far.

Likewise, impersonating someone else, or making false claims about one's identity, can make it impossible for legitimate consent to be given.

Sam Rickless said...

Absolutely fascinating post, especially from the perspective of someone who is familiar with what philosophers call "intensionality".

For the sake of clarity, let us suppose that the Israeli woman is Rachel and the Palestinian married man is Ahmed. I take it that part of what Sherry is saying here is that, whereas the Israeli woman consented to have sex with Ahmed, Adam did not consent to have sex with Lilith. This seems right, in some sense. But the difficulty here is that there is also a sense in which Adam *did* consent to have sex with the woman who happens to be Lilith. Here Lilith is, in bed with Adam, asking him whether he wants to have sex with her, and (of course, because he thinks she is his wife, Eve) he says "yes".

The problem here lies in how we are going to characterize the proposition lack of consent to which is sufficient to turn what would otherwise be a non-rape into a rape.

Let us ask Adam (while he is in bed with Lilith) whether he wishes to have sex with Lilith, and his answer will be "no". Let us ask Adam (while he is in bed with Lilith) whether he wishes to have sex with the woman in bed with him (or: with *that* woman [as we point to her]), and his answer with be "yes". The proposition to which Adam is consenting in the first case differs from the proposition to which Adam is consenting in the second case (even though both propositions have the same truth conditions).

I am inclined to think that it is the first proposition (or something like it), and not the second, that should determine whether rape has occurred. Whom one takes oneself to be having sex with is a critical parameter. So if X rapes Y if and only if X engages in a form of sexual activity with Y to which Y did not consent, then, on my understanding of the relevant test for the presence of consent, Lilith did rape Adam.

(We need to be very careful here. Most rapes are committed by men and most rape victims are women. So we need to worry about the possibility that our reaction to the Lilith-Adam case is influenced by a background-knowledge-driven predisposition to treat the case as falling outside the category of rape. Ask yourself: What if the tables were turned and Barry were the one taking advantage of the fact that Eve thinks he is Adam?)

Does rape require the use of force or coercion? I think not. It is possible for A to rape B when B is asleep, a situation in which no force is used and no coercion needed. The important aspect of rape is its non-consensual character. It is for *this* reason that we worry about force and coercion. Force and coercion typically indicate not only the absence of consent, but also the presence of refusal (which itself entails lack of consent).

Note that on this understanding of rape, Ahmed did not rape Rachel. Rachel was not under the misimpression that Ahmed was someone else. He deceived her, not about who he is, but about some facts about him (that he was married, that he was not Jewish). If this sort of deception is sufficient for rape, then it is going to be very difficult to distinguish between the Ahmed-Rachel case and the huge number of non-rape cases in which consensual sexual activity is preceded by one or more lies ("you are the first," "I love you," "I used to play double-A ball," "I was a backup singer for Taylor Swift").

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