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.