Rape by deception

Rape by deception is a situation in which the perpetrator obtains the victim's agreement to engage in sexual intercourse or other sex acts, but gains it by deception or false statements or actions . Judicial treatment of such situations varies greatly by country and even by case. In Brazil, the law does not uses the term rape for the act, using sexual deception instead.

Notable cases

United Kingdom

Main article: Rape in English law

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),[2] R(F) v DPP (the sexual act was performed in a way that broke a condition agreed previously),[2] and R v McNally (deceit as to gender).[2] The Sexual Offences Act 1956 contained a ground of "procuring intercourse by false pretences" but this was abolished in the 2003 Act.

Three notable cases where this issue arose:

• The 2011 UK undercover policing relationships scandal, in which police officers obtained sex by deceiving as to their identity, as part of their duties. Crown Prosecutors declined to prosecute on the basis that legally, the actions would not constitute rape as consent to the act itself was informed and the grounds for rape by deceit as to identity was extremely limited.[2][3]
• In November 2015, British Judge Roger Dutton sentenced a 25-year-old woman, Gayle Newland, to eight years in prison for pretending to be a man as a means of having sex with an unnamed woman of the same age. Newland had made her female victim believe that she was a man by means of deception and used the deception in order to have sex with her on more than 10 occasions, using a dildo. Newland's victim was shocked to discover that her "boyfriend" was in reality female, and testified in Chester Crown Court to a jury that she would have preferred to have been raped by a man.[4][5]
• In September 2019, serial rapist Jason Lawrance appealed against one of his convictions, in which he had told a victim he had had a vasectomy, prior to sex, but admitted afterwards that this was untrue. The conviction for rape by deception was reported to be the first of their kind in the UK.[6] In July 2020, the Court of Appeal ruled that deceit as to fertility does not vitiate consent to sex, and quashed Lawrance's conviction.[7]

Transgender activist Sophie Cook has stated that the UK's Sexual Offences Act requires transgender people to tell partners about their sexual history as part of its requirements that people making sexual consent decisions can make informed consent, and that the law is an infringement on trans peoples' human rights and on their privacy.[8]

United States

Massachusetts

In 2008, it was reported that a Massachusetts woman, Marissa Lee-Fuentes, 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.[9][10] Massachusetts State House Representative Peter Koutoujian crafted rape-by-fraud legislation in response,[11] however it did not pass because legislators found the law to be too broad.

California

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 and gory 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.[12]

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.[13]

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 Julio Morales's 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.[14] He was also required to register as a sex offender for the rest of his life.

Israel

A legal precedent in Israel classifying sex by deception as rape was set by the Supreme Court in a 2008 conviction of Sabbar Kashur, who posed as a government official and persuaded women to have sex with him by promising them state benefits.[15][16] Another man, Eran Ben-Avraham, was convicted of fraud after having told a woman he was a neurosurgeon before she had sex with him.[16]

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.[17] (In later interviews, the man later denied the allegations that he lied, but such denials were not mentioned in his plea bargain.[18][19]) 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.[20][21]) 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.[18][21] The court sent the victim to a mental hospital for treatment and convicted Kashur on the lesser charge.[20] Prosecutors agreed to the plea bargain in order to spare the woman a long cross-examination that might undermine her evidence.[21] The public defender appealed the sentence to the Supreme Court, which postponed the sentence pending the appeal and freed Kashur from house arrest.[18] In 2012, the sentence was cut to 9 months by the Supreme Court.[19]

Sexual deception

Brazil

In Brazil, a similar crime, "Sexual Deception" states: "Having a carnal conjunction or performing another libidinous act with someone, through fraud or other means that prevents or hinders the victim's free expression of will" can punish the offender with a penalty upon 6 years in prison.[22] A man in the state of Paraná was imprisioned after tells a woman that he was single, to get sexual intercourse [23]

Notes

1. R v Assange in this instance should not be confused with a 1996 Australian case by that name relating to unauthorized computer use.[1]

References

1. Hayne, Vincent (October 2, 1996). "R v Assange, Supreme Court of Victoria, Court of Appeal". victorianreports.com.au. Victorian Reports. Retrieved May 10, 2018.
2. "Charging decision concerning MPS Special Demonstration Squad". blog.cps.gov.uk. The Crown Prosecution Service. August 21, 2014. Archived from the original on March 11, 2017. Retrieved May 10, 2018.
3. https://web.archive.org/web/20180328124223/http://www.rjerrard.co.uk/law/cases/linekar.htm - legal analysis of when deceit can cause a case to be chargeable as rape, in English law
4. "Woman who posed as man jailed for sex assaults". BBC News. Retrieved 12 July 2016.
5. "Woman who posed as man guilty of sexual assault". BBC News. Retrieved 12 July 2016.
6. Lowbridge, Caroline (2019-09-19). "Jason Lawrance appeals against vasectomy lie rape convictions". BBC News Online. BBC. Retrieved 2020-07-26.
7. Lowbridge, Caroline (2020-07-23). "Jason Lawrance appeal: Lying about fertility is not rape, say judges". BBC News Online. BBC. Retrieved 2020-07-26.
8. Sims, Alexandra (11 June 2016). "Trans people could 'face rape charges' if they don't declare sexual history, warns trans activist". www.independent.co.uk. Independent. Retrieved 25 June 2018. 'By forcing transgender people to disclose their history to prospective partners the law is not only infringing their human rights it’s also reinforcing the bigoted idea that trans people are in some way abhorrent'
9. "Rape 'by Deception' May Become A Crime In Massachusetts". CBS News. 2008-02-29. Retrieved 24 April 2011.
10. "If Your Neighbor Poses as Your Husband, Is it Rape?". NPR. Retrieved 12 July 2016.
11. McCartney, Ryan (27 July 2010). "Could a pick-up artist be charged with 'rape by deception'?". NBC News.
12. Boro v. Superior Court, Court of Appeals of California, First District, 210 Cal.Rptr. 122 (1985)
13. BLAU, LAUREN (13 March 1987). "Police Seek More Victims in 'Cure' Fraud : Man Charged With Getting Women to Have Sex as Treatment". Los Angeles Times. Retrieved 18 June 2018.
14. Robert J. Lopez (May 8, 2014). "Man gets prison in rape impersonation case that sparked new state law". Los Angeles Times. Retrieved 12 July 2016.
15. Heller, Jeffrey (22 July 2010). Jon Loades-Carter (ed.). "Israel jails Arab in 'sex through fraud' case". Reuters. Retrieved 12 July 2016.
16. "Jurists say Arab's rape conviction sets dangerous precedent". haaretz.com. Retrieved 12 July 2016.
17. "Arab man who posed as Jew to seduce woman convicted of rape". haaretz.com. Retrieved 12 July 2016.
18. Lital Grossman, From rape to racism: How and why did charges change against Arab man?, September 17, 2010
19. Paraszczuk, Joanna (January 27, 2012). "Court cuts Arab-Israeli rape-by-deception sentence". The Jerusalem Post. Retrieved August 23, 2012.
20. "Arab rape-by-deception charge 'was result of plea bargain'". Rachel Shabi, September 8, 2010, The Guardian.
21. "Unravelling the Israeli Arab 'rape by deception' case". Dina Newman, September 17, 2010, BBC.
22. https://jus.com.br/artigos/60328/violacao-sexual-mediante-fraude
23. https://catve.com/noticia/6/199591/idoso-e-preso-por-fraude-sexual-em-cascavel