In the US, where rape happens determines if it’s a crime!
The legislators of each state create the laws in that individual jurisdiction so what is legal in one place can be illegal in another. Most states recognize violent rape as a crime as well as coercion by threatening to do harm to you or someone else. Some states only recognize coercion as an overt threat while others will recognize covert threats like a power differential. A growing number of jurisdictions are beginning to recognize coercive control.
Deceiving you into sexual conduct; however, is only a crime in some states, and even then, the type of fraud used can be treated as a criminal offense in one state, while just down the road in another, it’s the “puffery” of seduction!
A little history
As far back as 1865, rape by fraud was recognized as a heinous act in the state of Michigan. In “People v. Crosswell, 13 Mich. 427 (1865)” the high court upheld the defendant’s conviction for rape by fraud and stated:
“The outrage upon the woman is just as great in these cases as if actual force had been employed.”
In the Roman era, recognition that a rape occurred was dependent on the victim being a “citizen” not a slave, and a virgin. It was punishable by death as a capital offense against the head of her household who owned her virginity, which was a valued commodity. But even still, Socrates identified the harm of “sex using persuasion,” and considered that harm especially compelling because it “undermined the character of the victim.”
While in the modern era, the act of obtaining intercourse through material and false misrepresentations, rape by fraud, is only penalized in a few states, the act of misleading a person in order to elicit love and affection, emotional rape, is never penalized at all.
What is fraud?
All fraud laws are based on the premise that a person’s consent must be unambiguous, freely given and not the by-product of deceit in order to be legally valid. Consent is not merely agreement. It’s freely given, knowledgeable and informed agreement. When a person robs someone of their assets by misleading them into agreement, they can be punished for “theft by fraud.” Likewise, when a person misleads someone into sexual contact or sexual intercourse, they are sexually assaulting their target. Irrespective that the victim did not know the offender’s conduct was sexual assault at the time, the offender knew full-well that the agreement they received was given as a result of their deliberate, intentional, pre-meditated duplicity.
Legal commentators speak out
Kathryn and Russell Christopher, University of Tulsa College of Law, and authors of Criminal Law, Model Problems and Outstanding Answers, wrote a comprehensive review of Rape by Fraud as a means to defend statutory rapists. Their work was published in the 2007, Northwestern University Law Review. On page #102, their comments include:
“Under two consent standards—“global consent” and “knowing and voluntary consent” —fraud vitiates the victim’s consent to intercourse,”
“As many as twelve states follow the Model Penal Code in promulgating global consent provisions declaring that deception renders the victim’s consent legally ineffective.”
More to the point, consent does not exist when agreement is induced by duplicity because knowledge and information are required elements in consent. Speaking about “consent” being “undermined” leads one to believe that it existed and then it did not. While agreement can exist without knowledge and information, consent cannot. And consent is required in all sexual conduct.
Law Professor Susan Estrich staunchly advocated for rape laws to prohibit the same deceptions as a state’s laws of false pretenses or fraud. In all states, adult impersonation qualifies as a material fraud.
Professor Estrich authored Real Rape, the first meaningful book to shed light on rape by fraud. She is a noted political commentator for Fox News, the 1988 National Campaign Manager for Dukakis-Bentsen, and the first female President of the Harvard Law Review,
Law Professor Patricia Falk identified the issues surrounding the inclusion of rape by fraud law in penal code. Her submission to the Brooklyn Law Review, in 2009, outlined many of the problems and challenges such laws face.
Distinctions in acts of rape by fraud
Some states penalize fraud in the factum while others prosecute fraud in the inducement. Fraud in the factum occurs when the victim is deceived that sexual intercourse is taking place. If a doctor indicates he’s inserting a medical instrument but inserts his penis instead, he’s conducting fraud in the factum.
Fraud in the inducement would occur if the victim is fooled about the identity or some aspect of the identity of the sexual offender.
Find what you need about your state
The following is a brief outline of the conditions of rape by fraud laws in various states. Read the posts about individual states for more in-depth analysis. Right click on the state’s name to link with further information:
Alabama– ***** Sexual Misconduct when consent is obtained by any fraud or artifice. A Class A misdemeanor.
Arizona– Fraud in the factum (nature of the act)
California– *** Fraud in the factum (nature of the act). Governor Jerry Brown recently signed “Yes Means Yes” into law. This legislation states that affirmative permission must be unambiguous. Question- How can an offender, who knows they are lying, perceive the victim’s agreement to be unambiguous? California passed changes to their “rape” law in 2013 making certain types of rape by fraud illegal, but not all.
District of Columbia (DC)- Even their misdemeanor on sexual abuse fails to cover all causes. They use the term permission as a substitute for consent. “Whoever engages in a sexual act or sexual contact with another person and who should have knowledge or reason to know that the act was committed without that other person’s permission, shall be imprisoned for not more than 180 days and, in addition, may be fined in an amount not more than the amount set forth in § 22-3571.01.”
DC fails to recognize that “permission” is not explained. Does “permission” mean that you simply say “yes?” Or does it mean that you must be saying “yes” because the offender did not use a malicious means to get you to say yes? And must you vocalize that yes? If you do, does the fact that you vocalized agreement, or the fact that you agreed without being forced, coerced or tricked into agreement have priority? There is far too much grey area that a sexual predator can slide through in DC’s statute.
DC needs to use the correct term, consent, and define consent correctly as the freely given, knowledgeable and informed agreement that it is.
Florida– Consent must be “intelligent and knowing.” Florida refers to sex crimes as sexual battery. Although no specific law on rape by fraud, their language seems promising if a victim pursues such a charge. See post for further information.
Hawaii– No provisions for rape by fraud. Statutes protect against sexual acts recklessly achieved by “complusion,” which includes coercion, the threat of harm, or sexual contact achieved through the abuse of authority. “Peeping” under trespass is a fourth degree offense.
Idaho– ***** Rape by fraud in the inducement and in the factum! Idaho continues to use the term “rape.” All rape requires a male offender and a female victim. Rape occurs when the victim believes that the accused is someone other than who they are and their belief is induced by any artifice, pretense, or concealment by the accused to induce such belief. Fraud in the factum extends to cover sexual exploitation by medical providers as well as psychiatric and mental health professionals.
Massachusetts– A rape by fraud statute was introduced by Representative Peter J. Koutoujian, and voted down. See individual post on this state for further information.
Michigan– Penalizes intercourse obtained by concealment. (Arguable as to whether a lie is considered concealment.) (v) When the actor, through concealment or by the element of surprise, is able to overcome the victim.
750.532 Seduction; Archaic Law but still on the books- Any man who shall seduce and debauch (degrade, corrupt) any unmarried woman shall be guilty of a felony, punishable by imprisonment in the state prison not more than 5 years or by fine of not more than 2,500 dollars; but no prosecution shall be commenced under this section after 1 year from the time of committing the offense.
Nebraska– Fraud in the factum (nature of the act). Penalizes intercourse obtained by deception as to the identity of the actor such as a person who poses as a fiance, husband or lover.
Nevada– Supreme Court ruling, McNair vs. State- Sexual assault language is sufficiently broad and explicit to encompass conduct occurring as a result of fraud & deceit.
New Jersey– Penalizes Fraud in the factum (nature of the act.) An overhaul of their criminal code eliminated the term “rape” and replaced it with the terms “Sexual Assault” and “Sexual Contact.” Additional language contained in The Criminal Law Digest of the State of NJ states that affirmative permission to the specific act of sexual penetration or contact must be perceived as such by a reasonable person. Victims of “sexual assault” in this state are entitled to a restraining order against the offender based on “Nicole’s Law.” NJ mirrors the concept of “consent” in their definition, but fails to enforce the law as it’s written that requires “consent” in all sexual contact.
In 2014, Asm. Troy Singleton made an attempt to enact a law to prevent sexual assault by fraud. The law was too loosely written and did not garner support. Changing the behavior of law enforcement and prosecutors in NJ could be as simple as insisting that they act on the law that currently exists. But instead, a victim wants to make a big name for herself by creating a new law and has set back the effort through her ignorance.
New York– Neither fraud in the factum nor fraud in the inducement. Sexual misconduct, however, provides basic language that could be utilized to pursue a rape by fraud case, however, the concept of “knowing consent” must be argued in order to do so.
Oregon- A little gem of a law exists there. It’s called “Sexual Abuse in the Third Degree” and it’s based on “consent.” Most of Oregon’s sex laws require forcible compulsion, defect, or physical helplessness, but § 163.415¹ is the exception. Only an actual case will prove whether Oregon understands what “consent” actually means.
Rhode Island– Prohibits intercourse obtained by concealment
Tennessee– ***** Prohibits intercourse induced by deception, accomplished by fraud and obtained by ruse. Abolished distinction between fraud in the factum and fraud in the inducement. However, a child who is a victim of statutory rape can be considered an accomplice in their own rape, nullifying the statutory rape charge against the accused through a rape by fraud defense.
FindLaw provides the following information on Tennessee’s Law:
|Tennessee Code Title 39: Criminal Offenses, Chapter 13: Offenses Against the Person, Part 5: Sexual Offenses|
|What is Prohibited?||Many sexual offenses are illegal in Tennessee, including:
Sexual Battery in Tennessee is a Class E Felony
39-13-505. Sexual battery.
(a) Sexual battery is unlawful sexual contact with a victim by the defendant or the defendant by a victim accompanied by any of the following circumstances:
(1) Force or coercion is used to accomplish the act;
(2) The sexual contact is accomplished without the consent of the victim and the defendant knows or has reason to know at the time of the contact that the victim did not consent;
(3) The defendant knows or has reason to know that the victim is mentally defective, mentally incapacitated or physically helpless; or
(4) The sexual contact is accomplished by fraud.
(b) As used in this section, “coercion” means the threat of kidnapping, extortion, force or violence to be performed immediately or in the future.
According to CrimLaw, prosecuting these cases, even where a straightforward law exists , is difficult, and in Tennessee, only two such cases have been tried:
State v. Mitchell, 1999, C.C.A. No. 01C01-9612-CR-00502, a man convinced women he was their boyfriend and that he had a fantasy that they would have sex while she was blindfolded. In State v. Brigman, 2003, C.C.A. No. M2002-00461-CCA-R3-CD, a man convinced young men that if they were blindfolded a woman would come and perform oral sex on the young male, but did it himself. Both of these seem to indicate that conviction for rape by fraud is a difficult case to prosecute which would only occur in incredibly unusual situations.
Texas– Sexual assault in the factum. It’s a sexual assault if the offender knows that the person is unaware that the sexual act is occurring.
22.011(a) (1) a person commits an offense (sexual assault) if the person intentionally or knowingly causes the penetration of the anus or sexual organ of another person by any means without that person’s consent. Further, the statute identifies multiple non-violent but non-consensual acts. Fraud, however, is not on the list.
Rape by fraud in this state would require it to be argued that since duplicity invalidates consent, and invalid consent is no consent at all, sexual assault by fraud should be covered under their existing statute.
Texas law covers when the actor compels the person in their role of spiritual advisor, but not rape by fraud.
Utah– Penalizes intercourse obtained by concealment
Virginia– § 18.2-67.4 Sexual battery. A. An accused is guilty of sexual battery if he sexually abuses, as defined in § 18.2-67.10, (i) the complaining witness against the will of the complaining witness, by force, threat, intimidation, or ruse,