Rape by deception

Rape by deception is a crime in which the perpetrator has the victim's sexual consent and compliance, but gains it through deception or fraudulent statements or actions.

The media may also refer to this type of rape as "rape by fraud",^[1] "rape by impersonation" or "rape by trickery."

Notable cases

United Kingdom

Main article: Rape in English law

In English law, the basis for such claims is "very narrow", as ruled by the Court of Appeal in R v Linekar [1995] 3 All ER 69 73. Past cases where deceit has negated consent and rape has been ruled, include R v Assange and R(F) v DPP (the sexual act was performed in a way that broke a condition agreed previously), and R - v - McNally (deceit as to gender). The 1956 Act contained a ground of "procuring intercourse by false pretences" but this was abolished in the 2003 Act.

A paper on website The Student Lawyer examined the basis for fraud as grounds for negating consent. It concluded that the issues which might arise if this was a legal basis to negate consent, could be far wider than might be first appreciated. Examples given by the author included sex in the following circumstances: "Andrew is secretly having an affair but denies this to his wife... Barney exaggerates his financial success and pretends to like the same music and films as his date in order to impress her... Charlie dyes his hair and pretends to be in his mid-30s on a dating website when he is really in his 50s... Derek is unhappy in his marriage and is considering whether to leave his wife; he does not mention his misgivings..." In these examples, the sexual partner in each case would not have consented had all matters likely to be relevant to their decision been fully disclosed, and a reasonable person might be expected to realise this.

Two notable cases where this issue arose:

• 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 having sex with an unnamed woman of the same age. Newland has 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. Newland's victim was shocked to discover that her "boyfriend" was in reality a female, and testified in Chester Crown Court to a jury that she would have preferred to have been raped by a man.

• 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.

United States

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 then required that rape include the use of force. Massachusetts State House Representative Peter Koutoujian crafted rape-by-fraud legislation in response, but it has yet to pass.

In California, on February 20, 2009, Julio Morales snuck 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 then re-tried and re-convicted to three years in a state prison, which he already served.

Israel

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

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