Sex, Deception and the Law

[steepholm]

This story from Israel contains a particularly toxic intersection of questions about racism, rape and disclosure. A man and a woman, both adults, both mentally competent, had consensual sex. But the man was convicted of rape - specifically "rape by deception". Why? Because the woman believed he was Jewish, when in fact he was an Arab.


On the face of it this seems a pretty crude use of the law of rape to enforce an anti-miscegination agenda. As indeed it is. But let's look more closely at the principle invoked by the court:

High Court Justice Elyakim Rubinstein said a conviction of rape should be imposed any time a "person does not tell the truth regarding critical matters to a reasonable woman, and as a result of misrepresentation she has sexual relations with him."

Note that deception in itself, however reprehensible, is not enough to turn otherwise-legal sex into rape. It has to be deception about something that "a reasonable woman" would regard as "critical" to the decision to have sex. What the court has in effect decided in this particular case, then, is that it is reasonable to decide whether or not to have sex on the basis of someone's race. Dana Pugach, head of the Noga Center for Victims of Crime, who approves the conviction, provided another example:

"We all have different characteristics, and it is a person's right to have sexual relations with a person knowing the facts about those characteristics. I see no difference between impersonating a Jew if you are an Arab and a wealthy pilot when you are penniless, if those are relevant characteristics to the decision to have sex."

It's hard not to infer from this that the "reasonable woman" envisaged by the law is one who will sleep with rich people but not with poor ones, and will not stray beyond her own race. Can this be what she meant?

It's a pretty unsavoury case, but the issues it raises are wider - and indeed the crime of "rape by deception" (or "rape by fraud") exists in quite a few jurisdictions, including several US states. Now, I don't have much experience of what is known as "chatting up", but I understand that it frequently involves people exaggerating, omitting significant facts and even telling lies to potential partners. If someone has sex with a barista under the impression that they're a barrister, does that amount to rape? It might, according to Dana Pugach's rule - at least if the complainant were sufficiently focused on money and social status. What if the accused says nothing about their job, but (wanting to dress to impress) is wearing expensive clothes borrowed from a friend? Or driving a flash (hired) car? Where do these lines get drawn?

Actually, I think there are a couple of general problems with the idea of rape by deception. One is that, if the definition of rape expands to include instances of consensual sex between competent adults, then the particular vileness of rape as a crime becomes diluted. (We might note in this regard that rape by deception could as easily be practised on men as on women.) The idea that rape comes in different degrees of seriousness (with strangers in alleys at the top of the list, then maybe date rape, with "insistent" husbands below that, and statutory rape of the just-underage at the bottom) is how we end up with people distinguishing "rape" from "rape rape".

I also think it's a really bad idea to suggest that there's a list of facts people should be obliged to communicate before sex, in order to avoid a charge of rape. This can be a cover for all kinds of prejuduce, especially as the test of "reasonableness" is in practice a test of whether the complainant's worldview happens to coincide with that of the judge. A "white looking" mixed-race person could be held to have raped a white person, for example, if the white person happened to be racist enough to find the idea of sex with non-whites objectionable. (Which is pretty much what happened in Israel.) Similarly, a trans person who didn't mention that they were trans could be held to have raped their partner simply through that omission, if both complainant and judge happened to be transphobic. [ETA 30/9/10: This is now happening in Scotland!] It's not hard to think of other examples, or of jurisdictions where the charge would stick.

This isn't to say that I don't believe there are things that really need to be mentioned before sex. Things like "I have an STD" or "I have a psychotic spouse who shot the last three people I had extra-marital sex with" would certainly qualify - not just as a moral obligation but also as a legal one. But neither of these things turn consensual sex into rape. Knowingly passing on an STD is a ghastly thing to do - but the offence is one of assault, or GBH, or, in the worst case, murder.

Having said all that, there are still hard cases - like that of the Massachussetts woman who had sex with her boyfriend's twin brother in the belief that he was her boyfriend. Because the sex was consensual and Massachusetts didn't have a crime of rape by deception on its books (though they're rethinking that), the man escaped any charge. Despite all the arguments I've just adduced against the idea of rape by deception, I have a hard time thinking of that case as being anything but rape. Which goes to show why I'd never have made it as a jurist.

Comments

[sheenaghpugh]

Yeah, I posted about this on facebook and really, it's misrepresentation not rape. People are always passing themselves off as something somewhat more or less than the truth to get into bed with someone. It's dishonest, and if a man does it, ungentlemanly, but it ain't rape. Possible examples:

man claims to be bachelor when he's married
man claims to be rich when he isn't
man says "I love you" and doesn't mean it.
woman claims to be 28 and is in fact nearer 40
woman gets most of face out of various pots by the side of the bed each day
... one could go on. Who knows whether, if they knew all, our inamorati/ae would have consented?

I do think your example of pretending to be one specific other person is different. That does go to consent, because if someone is only up for sex with one specific person it's a bit different from only being up for sex with a certain type of person. I'd think passing yourself off as being of the other gender pretty much counts too.

But this guy - come, come, judge; he's no gent but he's no criminal. And she's a racist, besides being a bit quick to jump into the sack with a relative stranger.

[kalypso-v.livejournal.com]

Yes, my first thought was "Would they have convicted a man who pretended to be unmarried because he knew the woman wouldn't sleep with someone else's husband?"

[calimac.livejournal.com]

I think the woman has a legal right to be a racist in choosing her sexual partners - there's no Equal Employment Opportunity Act for sex - and to be promiscuous too, however much we may privately disapprove. No more than "Did the victim dress provocatively?" should that enter into the question of consent.

The question is, what crime exactly did the man commit, and the first two on your list seem to be of the same order, and I'd be curious to read about cases like those and what the results were. You've also pinned accurately what's different about the twin-brother case.

Concerning "passing yourself off as being of the other gender" - what if you don't reveal that you're a transsexual? There have been some very ugly cases of transsexuals being killed on discovery of their status. (What if the woman had killed the man after finding that he was an Arab?)

[steepholm.livejournal.com]

Yes - as someone put it elsewhere on the internet: "This is how cis people describe that having sex with a trans person who doesn’t disclose is akin to rape or exposure to STDs. Cis people, on the contrary, are never expected to disclose their transphobia and unwillingness to date a trans person on any date. Cis people never feel the urge to say, 'Oh, by the way? If you’re trans, I will bash your head in with a fire extinguisher.'”

[sheenaghpugh]

Oh, murder is murder, and only self-defence or the defence of some innocent is a good excuse for it.

I don't think the man in this case committed any crime. He told a lie, but I'm not sure there is any law that says you have to tell the whole truth about yourself. Had it been for financial gain, there'd be a case for fraud but it wasn't.

[steepholm.livejournal.com]

Agreed.

[steepholm.livejournal.com]

I do think your example of pretending to be one specific other person is different. That does go to consent, because if someone is only up for sex with one specific person it's a bit different from only being up for sex with a certain type of person.

That's an interesting distinction, which I'll have to think about.

I'd think passing yourself off as being of the other gender pretty much counts too..

Counts as what? (If you're referring to trans people, then I should mention that not mentioning you're trans is no more "passing yourself off" as something you're not than is not mentioning you're cis. Trans men are men, and trans women are women. My previous post was aimed precisely at exposing the cisnormative assumptions in discussions around this kind of issue.)

[calimac.livejournal.com]

Trans men are men, and trans women are women.

That's exactly what the people who get upset over trans cooties are disputing, and declarations like this, however true, don't address the source of the problem. This is no more a productive line of argument than disputing over whether fetuses are people.

[steepholm.livejournal.com]

You're right, but I'm not trying to construct an argument here. There are some red-line issues that I'm not prepared to put up for debate on this blog, and that's one of them. (I'm also not prepared to give blog room to arguments about whether black people should ever have been emancipated, whether gays should be exterminated, sterilized or merely given reparative therapy, and - well, I'm sure you can fill out the list!)

If someone really did have a problem with that proposition I'd be happy to point them to some of the many good books and web sites that discuss the issue more knowledgeably than I could, but more than that I will regard as trolling and deal with accordingly.

[sheenaghpugh]

No, I don't mean trans people. I'm thinking mainly of women who, historically, have disguised themselves as men for good career reasons, since they couldn't enter certain professions as women and had no choice. Sometimes women in that situation started relationships with other women, possibly to screen their identity, which is understandable but a bit cruel to their partners. I think this might come into the same category as marrying when you know for certain you can't or won't do what your partner will expect by way of having sex and procreating children. Again it isn't illegal to deceive them in that way, though it's bloody cruel, but I guess it might invalidate any marriage?

[steepholm.livejournal.com]

I'm pretty sure that in most times and places such a marriage would not have been considered valid, purely because marriage was defined as being between a man and a woman, and/or because lack of consummation (understood as heterosexual sex) was seen as grounds for annulment. What the situation would be in a jurisdiction that allowed same-sex marriage is an interesting question, though. I wonder if it's ever arisen?

[calimac.livejournal.com]

Turns out that Israeli law is pretty strict about sexual deception, Arab or no Arab.

In 2008, the High Court of Justice set a precedent on rape by deception, rejecting an appeal of the rape conviction by Zvi Sleiman, who impersonated a senior official in the Housing Ministry whose wife worked in the National Insurance Institute. Sleiman told women he would get them an apartment and increased NII payments if they would sleep with him.

High Court Justice Elyakim Rubinstein said a conviction of rape should be imposed any time a "person does not tell the truth regarding critical matters to a reasonable woman, and as a result of misrepresentation she has sexual relations with him." ...

In the past, men who misrepresented themselves in this way were convicted of fraud.

One such case was that of Eran Ben-Avraham, who told a woman he was a neurosurgeon after which she had sex with him, and was convicted of three counts of fraud.

[sheenaghpugh]

Fraud: reasonable, though only if some financial benefit resulted. Rape: preposterous....

[gair.livejournal.com]

This is how British law treated rape until the last, I don't know, 50 or 100 years, certainly: there was an economic/contract-based model, where what marked rape was not an absence of consent, but a fraudulent basis for contract. (I just found this out from Joanna Bourke's big book called something like Rape: A Cultural History.) So if a man 'got' sex from the woman on the basis of false pretences (promises to marry her, lies about his identity, whatever, etc), that was rape. Consent didn't enter into it until much more recently.

[steepholm.livejournal.com]

That's very interesting! But I'm puzzled how, in that case, rape came to be seen as almost exclusively a crime perpetrated by men against women. Perhaps it's less common for women to get other people into bed under false pretences, but it certainly happens. Would that have been defined as rape in the past?

[gair.livejournal.com]

I don't think there are any cases of it: partly because substantive harm (in terms of his future marriageability/economic survival) was not (seen as having been) done to the man in such a case, and partly because - probably for related reasons - complaints wouldn't have been taken to court.

[steepholm.livejournal.com]

Ah, if the question is one of substantive harm then it's a narrower definition than in the present case, where all that's required is to show that the false information might have been critical in the mind of a reasonable person in deciding whether to have sex. Harm doesn't need to be demonstrated.

[steepholm.livejournal.com]

Oh, and it just occurs to me that the question of consent must have been at least involved in the definition of rape rather earlier than you're suggesting - otherwise why would Shakespeare have called his poem 'The Rape of Lucrece'?

[gair.livejournal.com]

This is exactly the sort of question I was hoping Joanna Bourke's would answer, but it doesn't, irritatingly, so I don't know! The question of consent is certainly there from fifth-century BCE discussions of Helen of Troy, and possibly earlier (can't remember if it's in Homer), but it's not always foregrounded legally, I think.

[drasecretcampus.livejournal.com]

I think this was covered on the R4 religious news programme this morning - and I think there was also deception about his marital status - in other words it wasn't quite as reported. But don't quote me, it was early.

[steepholm.livejournal.com]

Thanks for the tip off. I just Listened Again, and you're right. It's still a moot point whether lying about one's marital status is enough to turn consensual sex into rape, of course, but that's a useful extra bit of context.

[drasecretcampus.livejournal.com]

I assume the issue is thus how informed is informed consent; to my mind it would be adultery rather than rape on that issue (of lying about one's marital status).

[steepholm.livejournal.com]

I'd have thought so too!

The other thing I perhaps should have brought out, which that radio piece reminded me of, is the asymmetry of the reasonableness test. The penniless person might be accused of pretending to be rich, but the reverse situation is more or less unthinkable. The Arab might be charged with rape because of pretending to be Jewish, but it ain't going to happen the other way around - and so on. Reasonableness is defined in such a way as to systematically favour those in positions of privilege and power.