Sex, Deception and the Law
Jul. 25th, 2010 01:05 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
steepholmThis 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:
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:
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.
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.