The American Bar Association (ABA) recently attempted to provide recommended wording for “consent” in order to get the states and territories across the US on the same page. You’d think I’d be jumping for joy, but unfortunately, I’m not. And the reason is not because their attempt failed, but because their attempt so woefully missed the mark!
Jamaican law is far superior to US law when it comes to recognizing the horror of rape by fraud! Read this important article, written by Orville Taylor and published today in The Gleanerin Kingston Jamaica. Pay close attention to this statement:
“Indeed, capacity is also affected by knowledge so that if someone pretends to be someone else and gets to engage in intimate contact with the ‘victim’ by fraud, it is assault and rape if it goes far enough. Believe it: If a woman masquerades as a man, and, based on deception, gets into sexual activities with a heterosexual woman, it is also assault.”
There is simply no excuse for our US laws to disregard the heinous assault on the victim in cases where a sexual predator’s weapon of choice is trickery!
If our laws were clear that consent is freely given, knowledgeable and informed agreement, #FGKIA, accountability would exist for all types of sex crimes, not simply the specific mentions our law makers call “sexual assault” or “rape,” while completely ignoring all the rest!
Spectacular in photos, but not so pretty when it comes to protecting against Sexual Assault by Fraud!
There are 13 types of fraud identified in Chapter 37 of Maine’s Penal Code. And one of them, Misuse of Identification, is particularly revealing. It states that oral misrepresentation of name, date of birth, or any other means of identifying the person that is generally accepted as accurate and reliable, would make the offender guilty of a specific crime.
This statute enables us to see that providing oral false statements about one’s identity, when used to conduct an illicit act, is, indeed, penalized in Maine, but not when it comes to defrauding a victim of sex.
2. A person is guilty of gross sexual assault if that person engages in a sexual act with another person and:
A. The actor has substantially impaired the other person’s power to appraise or control the other person’s sexual acts by furnishing, as defined in section 1101, subsection 18, paragraph A, administering or employing drugs, intoxicants or other similar means. Violation of this paragraph is a Class B crime; [2007, c. 474, §1 (AMD).]
Arguably, this clause could enforce rape by fraud if the state would support that lies impair the victim’s ability to “appraise and control” and if fraud would be considered “other similar means.” Instead, the state of Maine prosecutes one specific type of Sexual Assault by Fraud, that of being duped into accepting a drug that could render the victim powerless against sexual contact:
A. The other person is a patient of the actor and has a reasonable belief that the actor is administering the substance for medical or dental examination or treatment; or [2007, c. 474, §2 (NEW).
Unless otherwise provided, when causing a result is an element of a crime, causation may be found where the result would not have occurred but for the conduct of the defendant operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the defendant was clearly insufficient. [1981, c. 324, §14 (NEW).]
In every act of Sexual Assault by Fraud, the result, sexual relations, would not have occurred but for the conduct of the defendant operating either alone or concurrently with another cause. In fact, many cases of sexual assault by fraud occur alongside defrauding the victim of money or property and sometimes, even for immigration status.
Sexual relations with someone mentally incapable of consent
Administering drugs intoxicants or similar means
Engaing in sex with someone who is incapable of resisting and has not consented to the sexual act
Engaging in sex when various circumstances of authority or medical care exist
In general, Maine needs to create specific language to protect its citizens, and travelers who come to fish, hunt, swim, hike, ski, kayak, bird watch, snowboard, surf, sail and conduct all kinds of other activities, from the perils of sexual assault by fraud when they’re visiting the state.
Objections to penal code on sexual assault by fraud range from uninformed to downright bizarre:
People should just be more careful,
Boys will be boys,
It happens so frequently- half of society would end up in jail,
……… and on and on!
Here are some frequently raised objections, and why they simply don’t fly:
“Victims should be more careful.”
People with this objection fail to realize that sexual predators will specifically set out to lie and thwart detection. They go to great lengths to proffer and perpetuate sexual hoaxes. They deliberately harm one unsuspecting victim after another.
Rape by fraud happens to naive people, but it also happens to very astute victims who are not easily fooled. To some offenders, undermining the emotional armor that protects the most intelligent and savvy target is especially rewarding.
A victim’s “carefulness” can be undermined by an unscrupulous offender, and naivete is not a crime. Rape is.
“They didn’t know, so no crime was committed.”
All fraud takes place as the result of the victim being overcome by the offender’s vitiation of consent. But when the victim learns they were “had,” their feelings of defilement can be overwhelming. The same would be true of date rape in which the victim was drugged and not conscious when the rape actually took place.
No rape is less of a rape because the victim did not know that it was happening to them at the time.
“Rape by fraud is really not rape.”
The generic word, “rape” is globally accepted as “non-consented sexual penetration.” While different states call it by different names, sexual assault, sexual battery, sexual misconduct, etc, “rape” refers to sexually penetrating a victim who would not knowingly consent but for the vitiation of their consent by the offender. Because society balks at the use of the term “rape” when no violence occurs, however, it’s best to use a less glaring term for non-violent acts of rape.
A recent University of North Dakota survey indicates that approximately 1 out of 3 college men would rape if they thought there would be no consequences. This figure was arrived at when the act was described but not referred to as “rape.” When the word “rape” was introduced, however, the ratio dropped to 13%.
Rape is the crime of stealing sex from someone who would not otherwise give it to you.
“Saying “yes” means consent.”
Using fraud to secure a “yes” is sexual exploitation. In all human interaction, when someone defrauds you of your assets or dupes you into conduct of any sort, they are using the tool of “fraud” to take something from you. Your consent is considered totally ineffective under the law.
Model Penal Code- “Consent is ineffective when induced by force, duress or deception.”
“Rape by fraud laws would punish people for wearing padded bras, lifts in their shoes, or dying their hair.”
Balderdash! A person’s appearance is either pleasing to their sexual partner or not. An appearance enhancement neither masks the nature of the act itself nor the identity or intent of the offender.
Appearance enhancements can and should be disqualified as “fraud” in rape by fraud law.
“This law is just another way to make society more of a woman’s world and undermine maleness.”
I view that comment as one of the most sexist things I’ve ever heard. In the tug of war between misogyny and misandry, some feel that rape by fraud laws favor women. Women can be just as guilty of conducting rape by fraud as men, although more rapes occur to women than men.
Rape by fraud law would protect men against gold-diggers and curtail the transmission of life-altering illness that occurrs when a sexual predator lies to hide their health condition from someone of either sex.
The law is gender neutral and provides equal protection to both men and women.
“It goes on all the time. How could laws possibly be enforced?”
First off, it shouldn’t go on all the time, and that’s exactly why this law is so important. Once it becomes law, people will recognize sexual assault by fraud as abhorrent behavior.
The proofs needed to try a case are far more substantial than simply “he said, she said.” The police can’t arrest someone without proof of a claim, the Grand Jury can’t indict, and the victim would have to have made a reasonable effort to know the truth.
Willingly jumping into bed with someone upon first meeting them would not qualify as rape by fraud. Unless the victim can substantiate that the crime, indeed, was committed against them, in keeping with all criminal arrests, no prosecution would take place.
Any arrest would require substantial proof and the victim would have to have made a reasonable effort to know the truth
“People will fabricate they were raped after the fact because they simply want to damage the innocent person who’s dumped them.”
Fabrication can take place in any claim of wrong-doing. We don’t fail to enforce criminal law because people can misuse it. That’s what judges and juries are for; determining whether sufficient proof exists to pronounce the offender guilty. There are so many reasons why people don’t immediately come forward after a rape that it would take up an entire post. But when they do come forward, they need proof in order to press charges. A non-supported case of “he said, she said” would not be prosecuted, even though any act of swindling someone out of sex is a violation.
Significant proof is required when prosecuting any claim in every case. Sexual Assault by Fraud is no different.
“Violent rape is the only real rape.”
Our laws have long recognized that a violent assault against a victim’s sex organs is more heinous than other types of violent assault. If the offender used violence to break our arm, we would not call that rape. We recognize that there is something uniquely different about sexually violating a person. And there is nothing that can compare to the heinousness of violent rape.
But violence is one means to rape a victim. Our laws have also acknowledged that penetration of a person’s sex organs without their consent is “rape,” Date rape and statutory rape are good examples.They are forms of rape in which violence need not be present. The It’sOnUs Pledge states specifically, “Non-consensual sex is sexual assault.”
When the offender uses fraud to vitiate “knowing consent,” by any means, they are aware they are doing so, even though the victim is not. In all acts of rape, it is the actions of the actor that is the crime.
The tools by which an offender will sexually violate a victim include: violence, dope, intoxication, coercion, sex with someone under the age of consent or too mentally incapacitated to consent, and fraud, (dupllicity/deceit.)
Every means of vitiating a victim’s right to self determination to penetrate their sex organs is rape.
Why will people will continue to object?
With all of the reasons behind adoption of sexual assault by fraud law, some people will continue to oppose it. Any change in society’s “norms” takes getting used to. Often, those changes are initially met with disbelief and even ridicule. We’re seeing that in the outlandish comments people make. But there are other reasons many will continue to object. Here are a few……
1. They didn’t read or understand the law.
2. The media continues to stir up hysteria by incorrectly stating fictitious cases such as “the speed of my Lamborghini, blah, blah,” or “I’m Brad Pitt’s best friend.”
2. There are people who fail to appreciate and acknowledge that every human being’s body is sacrosanct. It’s a good idea to stay away from people who fail to do so. They’d have very little respect for your sexual autonomy,
3. Media’s portrayal of sex, and its constant bombardment of sexual imagery, creates the concept that sex is a prize, reward or entitlement. Sex has been depersonalized. It’s become a commodity. But sex is not a “thing”, and sexual sanctity is every person’s inherent right.
4. Adopting new legislation is up to legislators who count on making popular decisions to remain in office. And some legislators, judges, police officers and others, who pass or uphold the laws, can be just as guilty of rape by fraud as anyone else. An inability to grasp the criminality of rape by fraud tells us a great deal about that person.
6. The mindset that enables an offender to commit rape by fraud is a selfish, narcissistic perspective; one that puts individual desire above respect for another human being’s self determination. Doing so indicates their ability to devalue a victim for their own personal greed. People who object are supporting society’s continued acceptance of sexually deviant behavior. What does that say about that individual?
Let’s have a frank and open discussion
Anyone wishing to state an objection to sexual assault by fraud law can leave a comment here, and I’ll be happy to respond. Folks who’d like to lend their support are welcome to join in. Please address the issue in a respectful fashion. Hurling insults, foul language, personal attacks or other negative responses will result in removal of the comment.