Lafayette IN- Donald Grant Ward, was found “not guilty” of rape by fraud by an Indiana court on Tuesday, Feb 6, 2018. Ward, a Purdue student, was accused of stealing into the victim’s bed, under the cover of darkness, and pretending to be her lover. He was not acquitted on the merits of the accusation, but rather on whether, in Indiana, his conduct constituted a crime. The verdict clearly demonstrates that Indiana’s rape laws need fixing!
A heroic effort
The state’s prosecutor, Patrick Harrington, vowed to work with the state’s legislators to change the law, and commended the victim for coming forward. My heart and appreciation truly go out to him for trying this case despite Indiana’s antiquated laws.
Everyone, even rapists, deserve representation by a defense lawyer.
In the WLFI interview conducted by reporter, Kayla Sullivan, Ward’s attorney, Kirk Freeman, pointed out that according to Indiana’s laws, rape occurs through force, mental incapacitation, and when the victim is not aware that a sexual act is taking place. Being deceived about the sexual act itself is called “rape by fraud in the factum.” The actions of convicted felon, Dr. Larry Nassar, are examples of fraud in the factum. He pretended he was conducting medically necessary procedures and examinations, while pleasuring his sexual desires by assaulting 156+ young girls.
Fraud in the factum is not the only type of deception sexual predators use. Donald Ward conducted fraud in the inducement, which means, he tricked the victim about the actor, not the action itself.
Although in his statements, Freeman accepts that fraud in the factum is illegal, he fails to connect the dots that link all types of fraud together. If some frauds undermine consent, then all frauds undermine consent. The criminality of an act must be consistent. Consent is always consent. Fraud is always fraud. Rape is always rape.
The reason the use of fraud can never be construed as consent is that consent is freely given, knowledgeable and informed agreement, #FGKIA. You can’t claim you are securing consent when you deliberately misinform. It’s an oxymoron!
Not recognizing the impact of all forms of fraud on sexual conduct is like failing to acknowledge someone steals without using a weapon vs. when they do so. The victim’s property is stripped from them, regardless of the method. Bernie Madoff is in jail because instead of stealing money by force, he stole by using fraud.
In all sexual assaults, including rape by fraud, deception, or impersonation, while the victim may have assented, agreed on the face of it, or acquiesced, agreed under duress, they could not possibly have consented, provided freely given, knowledgeable and informed agreement.
While agreement exists in many forms, consent is the type of agreement that penal codes require. But judges, jurors, prosecutors and society in general often fail to recognize what consent actually is, and confuse assent with consent.
Where Freeman went off the deep end
It’s one thing to walk away from the Ward case saying “According to the current laws in Indiana, my client can not be found guilty, ” but he went on to express outlandish nonsense about why Indiana’s residents should be deprived of the protections afforded by sexual assault by fraud laws in the future.
Freeman scoffed that Indiana’s laws should not protect people from being fooled into thinking the person they’re having sex with is a Navy Seal, that they rescued a kitten from the highway, or that they’ll love you forever when they’re just after a quick roll in the hay. Unfortunately, he either fails to grasp, or wants to confuse people about how rape by fraud laws actually work. His stance against the enactment of rape by fraud laws could be an attempt to camouflage a deeply rooted rape mentality. And there are hordes of people who think just like him.
There’s an inherently high bar to prosecute rape by fraud crimes
In order to bring an action for fraud of any kind, the victim would need to have a reasonable basis for believing the lies they’ve been told. When a victim conducts a reasonable level of due diligence, but the offender was artful and determined to fool them despite their efforts, charges could be leveled against them. In a case like Donald Ward’s, he completely usurped another person’s identity to induce sex, and the victim had a reasonable basis on which to believe he was someone else.
Even so, the Prosecutor needs significant proof to charge an offender with any crime. Sexual assault by fraud is no different. Court decisions are based on proof, not merely on truth. Freeman ought to know this. He’s a lawyer. He said/she said utterances would not constitute proof.
Freeman’s examples are simply to fuel hysteria instead of reality. If he dealt with reality, he’d have to acknowledge that all forms of rape by fraud are a crime, even though most cases would never be tried. As to “pretending to be a Navy Seal” doing so is a crime in and of itself.
Freeman offered other “smoke and mirrors” objections. “Every time a guy says “I love you,” you’re going to prosecute him for rape? Insanity!” he claimed.
Sorry Freeman, you’re way off base! Saying “I love you,” even when you don’t, is not going to lead to a criminal charge. Don’t get me wrong… it’s not that it’s not a sexual assault. But, the case would be impossible to prove. The offender could simply say, “I changed my mind.” The term de minimus claims applies when a case lacks foundation. Freeman’s concern about going to jail when you lie about loving someone is unfounded even though, clearly, doing so is a sexual assault, not seduction.
If a married man pretends to be single and pursues you by claiming he’s going to marry you… he’s sexually assaulting you. But using the word “rape” is problematic in these cases, which is why, even though they are sexual assaults, the term, “sexual misconduct” is an easier pill for society to swallow. Often cases in which the offender pretends to be single and pledges marriage, even though they’re already married, take place over several months and even years. The victims not only have to deal with their sense of sexual violation and defilement, but also with trust issues that can last a lifetime. India has strict laws to prevent this crime.
In most states, sexual misconduct crimes are punishable either as a Class A Misdemeanor or a class D Felony.
Severe and overt cases like crawling into bed by pretending to be a person’s lover, or a doctor feigning that they are conducting a medical treatment, should be charged at a high level. The degree separates all crimes based on the severity of the act. Violent (aggravated) rape is the most heinous of all sexual assault crimes, but victims are harmed no matter what form sexual assault takes. All sexual assault victims deserve justice regardless of the method the offender uses to illegally induce sex. And all sex crimes, including rape by fraud offenses, should be assigned criminal classifications.
Freeman also raised the issue of “unintended consequences” as if Donald Ward did not fully intend to harm his victim by engaging in sex without her consent. Anyone who defrauds a victim for sex knows exactly what they’re doing and the consequence of defilement to that victim. All they care about is their own warped, sexual gratification. The victim cannot possibly consent unless they are freely giving knowledgeable and informed agreement to both the act and the actor. Anything less is a crime!
Is change a comin’?
#MeToo and #TimesUp have demonstrated the extreme imbalance in society between predators with rape mentality and moral human beings. Hopefully Prosecutor Harrington will bring about a change for the people of Indiana. You might like to write to him to provide encouragement. You can do so at email@example.com. You could be giving him just the ammunition he needs to get the job done!
“Non-consensual sex is sexual assault; Consent is freely given, knowledgeable and informed agreement! #FGKIA”
Let’s do whatever it takes to sign this language into law today!