Does lying about sexual preference constitute rape by fraud?
I was asked this question by a blog participant, and I believe its importance warrants a post of its own. Her question was framed in light of recent developments in penal code in New Jersey, but the answer is universal. So, here’s my response…..
Pertaining to New Jersey
First off, law in NJ has not been finalized, so it’s premature to give you a definitive answer for that specific state. Even once the statute is submitted to the Assembly, a significant amount of debate, and the submission of amendments, may alter its language.
But I’d like to answer your question from a broader perspective, that of whether pretending to be straight actually qualifies. generically, as sexual assault by fraud.
Character distortion and how it applies
There are basically two types of lies that offenders will use in fraud in the “inducement,” which is the sort of fraud where the actor pretends to be something or someone they are not. There are lies of “intent” and lies of “identity.” In the case you’re referring to, denying that someone is gay would seem to be a major character lie and, therefore, meet the definition of a lie of false identity.
Obstacles for this particular circumstance
But here’s where the line gets blurred….. All victims of lies of identity will feel defiled. And the longer the lie is perpetuated, the greater the harm they suffer. The victim is embroiled in a hoax. Unfortunately, however, when you speak of lies about a person’s sexual proclivity, there is a great deal of uncertainty as to whether the person deliberately lied to mislead you, or were they struggling through their own personal identification issues? In other words, were they lying to you, or lying to themselves? It’s only a deliberate lie if the answer is, unequivocally, they were fully aware and lying intentionally.
Another obstacle to hurdle is whether concealment is a form of lying. In some states it is. In others, it’s not.
I’m told that people who are gay know it from an early age. I’m no expert, however, and conceivably, this could differ from person to person. But certainly, if the actor knew he was gay, and intentionally pretended to be straight because attachment to you gave him “cover,” indeed, in my opinion, he would have been conducting sexual assault by fraud.
A person’s actual motivations are extremely difficult to prove in a courtroom. One would think that having had past homosexual liaisons would be a sure tip off. But we have so little concrete awareness of when and how people deem themselves to be homosexual, that I could see this type of case posing significant challenges in a courtroom.
But that should not deter the victim from coming to grips with the fact that they suffered rape by fraud. We don’t need a judge’s decision to know how we feel, but only to prosecute offenders. We would hope that offenders would be deterred by society’s penal codes, and that’s why we establish them. Also, we attempt to seek justice for the victims of crimes by enforcing those laws.
When did his actions cross the line?
If your husband had doubts when he married you, somewhere along the line, his doubts turned into conviction. And at that time, it was his responsibility to let you know. Every time he engaged in sexual contact with you under false pretenses, he was simply selfishly holding onto the perks in his life, that he valued, by denying you your inherent right to self determination over your personal sexual sanctity. And, by the way, this same principle would hold true in a relationship where the woman was gay and the man was straight.
Applying the concept of Emotional Rape
It is also my belief that you were emotionally raped. Emotional rape results when an offender steals your highest emotion, which is love, through deception. Even if he never laid a hand on you once he conceived of himself as gay, he selfishly fed the bond that kept you together by fabricating and perpetuating a hoax. In fact, part of his subterfuge was likely to have included undermining your feelings of attractiveness and desirability to cover up for his lack of sexual interest in you. Since emotional rape is not a physical act, it is unlikely you will ever see penal code to punish offenders. That should not deter victims, however, from feeling validation regarding their sense of defilement.
New York’s got something for every taste and interest.
No matter what your sports or cultural bent… it’s here. There’s the NY Football Giants, the Rangers, the Knicks, the Yankees, the Mets, the Nets…. Heck, we have the biggest tennis venue in the world, the US Open!
You can travel around the globe through NY’s wide assortment of international restaurants. Take your pick from the Afghan Kebab in Queens to Zoma, serving up the delights of Zimbabwe in Harlem.
Want an education? Your choices could include Columbia, NYU, CUNY, Marymount Manhattan, The New School, St. John’s University, and on, and on. The choices seem endless!
So it should come as no surprise that New York has a wide assortment of sex offenses in its penal code. Our diverse list includes sexual misconduct, rape, criminal sexual act, forcible touching, criminal sexual abuse, persistent sexual abuse, and more. But where’s rape by fraud? Hmmm….
The answer could be buried deep within the concept of 130.20, Sexual misconduct.
A person is guilty of sexual misconduct when:
He or she engages in sexual intercourse with another person without such person`s consent; or
He or she engages in oral sexual conduct or anal sexual conduct with another person without such person’s consent;
Sexual misconduct is a class A misdemeanor.
Rape in the third degree contains more language by which a case of rape by fraud should prevail. However, further legal interpretation by the state seems to have restrained this application to cases they have deemed to be date rape. In fact, most cases of rape by fraud are, indeed, cases of date rape. Instead of intoxicating or doping the victim, the offender vitiates their victim’s consent through duplicity.
130.25 Rape in the third degree. A person is guilty of rape in the third degree when: . . . . . 3. He or she engages in sexual intercourse with another person without such person’s consent where such lack of consent is by reason of some factor other than incapacity to consent.
§ 130.25 Rape in the third degree.
A person is guilty of rape in the third degree when:
1. He or she engages in sexual intercourse with another person who is
incapable of consent by reason of some factor other than being less than
seventeen years old;
2. Being twenty-one years old or more, he or she engages in sexual
intercourse with another person less than seventeen years old; or
3. He or she engages in sexual intercourse with another person without
such person's consent where such lack of consent is by reason of some
factor other than incapacity to consent.
Rape in the third degree is a class E felony.
Both criminal acts depend on the definition of “consent.” In all fraud law, including New York State’s, only “knowing consent” is legally valid consent. Therefore, if a victim is defrauded of their knowing consent in NY State, sexual misconduct or third degree rape should apply. If my case didn’t go back 40 years, I’d file a complaint.
Some of the most learned commentary on rape by fraud law comes out of NY State. A comprehensive treatise by Patricia J. Falk, Law Professor at Cleveland-Marshall College of Law, was published in 1998 in the Brooklyn Law Review. More recently, Daniel J. Slomnicki published his findings in NYSBA’s Law Student Connection. Mr. Slomnicki has interned with both the Queens District Attorney and the Kings County District Attorney.
NY is the state in which I was personally defrauded of sex for three and a half years. That defilement had an extraordinary and permanent affect on my life. I intend to make a difference in this state so it doesn’t happen to anyone else. Stay tuned!
Using false personation to obtain a seaport security ID can get you a five year stint in Florida State Prison. The Sunshine State’s statutes on fraudulent practices is so huge, it’s divided into four separate parts. Making false statements to merchants, on real estate transactions, and in communications are just a few of the many defrauding acts that are covered.
Florida identifies the following as their legislative intent regardingusing communications systems to carry out false personation:
Schemes to defraud have proliferated in the US in recent years and many operators of schemes to defraud use communications technology to solicit victims and thereby conceal their identities and overcome a victim’s normal resistance to sales pressure by delivering a personalized sales message.
Hmmm…. sounds just like what happens on e-dating sites, but it’s directed at advertisers who are selling products, not at sexual predators trolling for new victims. Seems false advertisements about hair products are far more important in Florida than defrauding you to undermine your sexual sanctity!
Florida identifies what most states call rape or sexual assault as sexual battery. One of the most important determinations in all such cases is the concept of consent. Their definition of consent is contained in 794.011 (a):
“Consent” means intelligent, knowing, and voluntary consent and does not include coerced submission.
According to this definition, a rape by fraud victim should be able to press charges based on the fact that their consent was neither intelligent nor knowing. Other positive signs for the possibility of a rape by fraud charge are conveyed by the following:
794.011 (c): “Mentally incapacitated” means temporarily incapable of appraising or controlling a person’s own conduct due to the influence of a narcotic, anesthetic, or intoxicating substance administered without his or her consent or due to any other act committed upon that person without his or her consent.
So, how about lying? Doesn’t that qualify as “any other act” committed without his or her consent? Sure should be!
Other than the ambiguous language quoted, there is no specific law in Florida’s statutes that prohibits rape by fraud: neither in the factum, nor in the inducement. But the literal interpretation of their language supports a victim bringing a case to the authorities, and if they fail to act, turning to their legislators to enact such a law.
Seems like an over abundance of swamp water drowns out the need to protect victims in Louisiana. The Bayou State has several statutes on rape, but none measure up on rape by fraud! There is aggravated rape, forcible rape, and simple rape. The construct that comes closest to rape by fraud, in Louisiana’s negligent criminal code, is simple rape, 43(a)(1).
In statute 43(a)(1), one example of simple rape is defined as sexual intercourse without the lawful consent of the victim when the victim is incapable of resisting or of understanding the nature of the act by reason of a stupor or abnormal condition of mind produced by an intoxicating agent or any cause and the offender knew or should have known of the victim’s incapacity.
The argument that could support a rape by fraud claim under this statute is that the victim was as unaware of the nature of the act as an intoxicated or drugged victim would be. Their consent, in any of the related cases, would not be freely given and knowing consent, because the offender duped them, (any cause,) into the act, and knew they were doing so at the time.
The ambiguity of this law could be cleared up by simply inserting the words “or duplicity” after “intoxicating agent.”
Protecting Wives Against Rape by Fraud
Louisiana’s statutes do contain one specific act of rape by fraud; (in the inducement,) that of impersonating the husband of the victim.
§43.3 When the female victim submits under the belief that the person committing the act is her husband and such belief is intentionally induced by any artifice, pretense, or concealment practiced by the offender.
By having implemented this law, Louisiana clearly shows that the use of fraud in seduction breaches knowing consent, but reserves their remedy solely for married women. This concept comes from the notion that a wife is a husband’s property. Defiling her is punishable because it is an offense against the husband. Unmarried women, therefore, are unprotected.
Idaho case tested the practice for single women
If a man posed as a boyfriend or fiancee, the charge would not apply. In a 2011 case in Idaho, against Zachary McGraw, the case was in fact dismissed because the victim was unmarried. The Judge on the case, the Hon. Cheri Copsey, found the disparity in the law “despicable”, but never-the-less, it still stands in Idaho and Louisiana. (Refer to pg. 184 of Carnal Abuse by Deceit.)
Louisiana’s statute on fraud as it relates to Theft, is crystal clear!
Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations.
The degrees of damage under this statute vary according to the monetary value of the loss. It appears that losing your most precious asset, your sexual sanctity, does not measure up to consideration since it has no quantifiable monetary value. Take a man’s money, off to jail you go. Defile a woman, (or anybody for that matter,) no problem!
A passage from the public online journal of Mischele Lewis, a rape by fraud victim from New Jersey
“Rape by deception is a fairly new concept. I know it’s setting a legal precedent out there but being the victim of such a crime, I’m certainly feeling passionate about it. No, I’m not saying that every man or woman out there who has an affair and tells their significant other that they’re single when they really aren’t should be open to prosecution when the truth comes out. But in a case like this where he lied about his entire EXISTENCE and used those lies to rob me of my sanctity, my body, my knowing CONSENT! I asked him why he didn’t tell me sooner. He said he was afraid to lose me. You think??!?
So let’s look at what Mischele says….
“Rape by fraud is a fairly new concept.” She’s says this in order to represent that she’s brought the concept to NJ. Not so fast Mischele…. you read it in my book. And it’s not new….
Socrates wrote about rape by fraud way back in the Roman era. Professor Susan Estrich wrote a book about it in 1982, called Real Rape. Several notable legal commentators have written about it, such as Law Professor Patricia J. Falk of Cleveland-Marshall College of Law. There are states like TN whose penal code has existed since 1977. And my own book, Carnal Abuse by Deceit, How a Predator’s Lies Became Rape, was published in 2013, before you learned that Jordan wasn’t who he said he was.
In my book, which she not only read, but commented that she was xeroxing it for her attorney, I sincerely thank those who came before me, and upon whose convictions and knowledge my own work stands. It’s the background that lead me to help Mischele deal with her misfortune. Not only should no one ever xerox a copyrighted book, but I find it outrageous when someone fails to honor the work and efforts of others in order to self-aggrandize. I’d probably let it go if I felt she was creating a benefit in society’s awareness, but she’s doing just the opposite, and here’s why:
According to Mischele, when someone says they’re single but they’re actually married, the law should not apply. She’s wholeheartedly wrong! The law is either “it’s wrong to lie” or “it’s not wrong to lie.” There’s no middle ground here. You can’t be just a little bit pregnant! Laws are based on legal concepts and you can’t simply pick when you’ll apply it and when you won’t.
The law will not prosecute cases of “he said, she said,” because they lack significant proof. No prosecutor will act on the case. That, and not that it’s not a crime, will prevent marital cheats from facing prosecution.
Mischele is out to get a law passed for what happened to her. But she is self-serving to the detriment of other victims. And, she is totally overlooking the fact that NJ already defines sexual assault as sexual conduct without consent, and consent as ineffective if produced by force duress or deception. What is needed in NJ is Prosecutors with the cojones to do the right thing!
Coming to a victim’s aid….
Mischele was introduced to me by Donna Anderson, the author of LoveFraud, How marrying a sociopath fulfilled my spiritual plan. She blogs at LoveFraud.com and has helped countless people recognize and deal with the aftermath of a relationship with a sociopath. I’ve written posts for Donna’s blog, and she knew I focus on combating rape by fraud by attempting to implement laws against it. When she learned of the problem Mischele had run into, she introduced us.
I spoke with Mischele over the phone and attempted to help her understand why what had happened to her was a crime. I told her I believed that either New Jersey would prosecute Will Jordan, the guy who duped her, or their failure to do so could provide the ammunition needed to protect other victims. She asked me to go with her to the police and file a report. I researched the statutes in New Jersey, put the information together in a file, and included two copies of my book. I drove the two hours from NYC to Florence NJ, where Donna Anderson, Mischele, and I paid a visit to the police.
Two days later, William Allen Jordan, who had posed as a completely different character than his actual identity, was arrested. The charges were 2nd degree sexual assault by coercion, third degree robbery by fraud, and impersonating an officer. It was my impression at the time that the coercion charge wouldn’t stick because Allen had not threatened Lewis. Quite the contrary. He had charmed her.
Mischele discovered Jordan’s true identity through a book and other efforts by Mary, one of his former wives. Mary truly deserves accolades for going public with Jordan’s story. Her ordeal made headlines in the UK and received additional media attention. Without her book, Mischele may never have known the truth. Mischele intends to write her story and has created a public journal.
Moving forward on 3 fronts…..
There are three major problems Mischele’s case could help resolve:
First- There is a cavernous hole in Meagan’s Law which requires the registration of convicted sexual molesters. Jordan had been convicted as a pedophile in the UK, but was deported to the US with no notice to NJ authorities.
Mischele was fortunate that the Assemblyman in her area, Troy Singleton, became aware of her case. He has agreed to introduce the Assembly version of legislation to close the international gap in Meagan’s Law, requiring the registration of international offenders who come to US shores.
Second- Michele Norberto, the mother of a sexual assault victim who had been instrumental in creating a New Jersey law called Nicole’s Law, contacted me. Nicole’s Law mandates that all sexual assault victims in New Jersey are to receive restraining orders against their offenders. She had noticed an online post I’d written, describing that Mischele Lewis had been denied a restraining order against Jordan.
The Judge, John Tomasello, had assailed Lewis for being “gullible”. And he likened her to a “gold digger” because she found him on the site, “Established Men.” He claimed that if he restrained Jordan he’d have to restrain all “college students”, as if lying to seduce someone was just kids’ play.
Nicole’s law was enacted to spare sexual assault victims from further, immediate harm. Although the record shows that Mischele had been issued a restraining order back when the arrest was made, she did not learn of it until after she suffered the wrath of Tomasello. She found out because Michele Norberto stepped up and contacted the authorities after reading my post.
Third- Sexual assault by fraud has other names such as rape by deception, impostor rape, and more. I have no preference as to what legislators call it, as long as the legislation is enacted in states that need it. The act could be considered as part of “date rape” in which the actor clouds self determination with drugs or alcohol. In fraud cases, the offender uses duplicity for the same purpose.
The realities of creating such a law
The problems of submitting language on this crime are many and great. People resist the concept because they believe the premise of “lies” as sexual assault may be offensive to victims of violent assault. By way of comparison, whether you’re defrauded of money or someone smashes you over the head with a two-by-four to grab your jewelry and your wallet, you’ve been robbed. Who can pass judgment on how violated a victim feels or should feel in either case? But Mischele, in pursuing a new law for NJ, should recognize that the law already exists, and for all deception, not just the one that happened to her.
When offenders lie about their marital status, a major deal breaker with most moral adults, they break their marriage vows, embroil the victim in adultery and fornication, and commit sexual assault by fraud. The victim has the right to self-determination over with whom they engage in sex, and should never be defrauded into a choice. A married man looking for hook-ups needs to find a “consenting” adult. Obviously it limits the field, which is exactly my point. Society needs to know.
Asm. Singleton also introduced a law on Sexual Assault by fraud. I attempted to ameliorate the problem of violent rape objectors and I received this message from one of his staffers as a cc:
“We have also requested OLS to draft legislation that would make sexual assault accomplished by fraud a crime, similar to Tennessee’s rape statute, including the language suggested by Joyce Short:
“The differentiation in the law should be one of “violent sexual assault” vs “non-violent sexual assault.” Violent sexual assault would apply when the person is physically overwhelmed by the offender. Non-violent sexual assault would be sexual assault committed by doping, intoxicating, DUPING, or coercing, and sexual penetration with someone unable to consent by virtue of age or mental capacity. “”
When Mischelle saw the note she called me screaming that I had interloped on “Her Law” and that I should go back to New York. She demanded that Asm. Singleton drop that language from the bill. Doing so caused huge negative repercussions in the press. And the bill failed to pass.
While Mischele was personally dealt a heinous crime of defilement, her post dismisses the crux of why it’s a crime. Lying to a victim to engage them in sex is, indeed, a sexual assault, period. The offender has sexually penetrated a person’s body by vitiating their knowing consent. In NJ, such consent is characterized as affirmative permission and the one change that would make NJ’s law more on-point is to simply change the words “affirmative permission” to “consent.”
I do not feel it is appropriate for Mischele to stand in judgement over how victimized others are when they are defrauded of sex. Whether the perpetrator uses the same duplicity that literally charmed the pants off of her, or any other ruse, all victims of sexual duplicity are violated.
Criminal code ascribes degrees of severity
Once a criminal act is identified, it is up to law makers to apply degrees to the crime. Those degrees convey the depth of seriousness of the crime. For instance, the crime of saying you’re single when you’re married to have sex with the victim once, could be sexual misconduct in the third degree, as opposed to a more severe charge against someone who continually assaults that victim by perpetuating the fraud over many years.
Mental health professionals have determined, and common sense dictates, that the damage to the victim increases with repetition. In other crimes, repetition of offenses is acknowledged by counts. Denying that a crime was committed when this behavior happens, even once, however, discounts the entire concept of “knowing consent” and discredits that the perpetrator’s willful and intentional invalidation of consent, by their duplicity, is criminal in any instance.
In cases where further crime takes place, the initial criminal behavior raises to the level of an “aggravated” act. In Mischele’s case, the offender was additionally charged with defrauding her of money. His conduct would warrant an arrest for “aggravated sexual assault by fraud,” a felony, as opposed to a one-time hookup which might warrant a misdemeanor charge. An Israeli case of a one-time offense resulted in an 18 month sentence for the perpetrator.
Varying types of deceit
When the tall tale that vitiates knowing consent is about the identity of the actor, the victim is penetrated by someone who is a stranger to them. Identity lies are irrefutable. They are not like a lie of intent in which the offender could rebut that they simply changed their mind.
Lies of intent are difficult to prove in any fraud, but should be dealt with in sexual assault in the same way that they’re dealt on all fraud charges. The difference in fraud that robs you of your assets vs fraud that robs you of your sexual sanctity, is simply the “booty” being sought. (Please pardon the pun, I just couldn’t resist!) Why should it be more burdensome for the court to determine whether a lie of intent existed in a sexual assault by fraud case than any other fraud case? That determination is their job.
In lies of identity, a person is either 28 or 48. They can’t have an MBA from a prestigious university and also be a high school dropout. The lie of identity is definitive and conclusive. It is specifically told to vitiate the knowing consent of the victim by masking the identity of the offender.
Validation at last……
I was delighted to have worked with Mischele to get Jodan arrested. and I was happy to discuss the law with Asm. Singleton in his efforts to make a difference. Hopefully, he will act on a law that requires Prosecutors to pay attention to the language that currently exists in their penal code to bring offenders to justice. But the nonsense that the only kind of fraud that harms them is the kind that happened to Mischele is simply self-serving nonsense.
Be aware. Sexual assault by fraud can happen to anyone! Here are some things YOU can do about it……
NJ residents- Call your legislators and tell them to vote to uphold the laws on sexual consent.
Residents in other states- Contact the legislators in your state to adopt language for a Sexual Assault by Fraud law, today!
Everyone- Please contact me today if you are a victim of Sexual Assault by Fraud in any state!
The frequency of sexual assaults on college campuses has become so epidemic, that preventing attacks inspired a nationwide campaign, winning the endorsement of President Barack Obama. This effort, entitled, It’sOnUs, calls attention to the many perilous ways students can be raped, but does not include rape by fraud, the crime of duplicitous sex that harms many unsuspecting victims.
In addition to the obvious benefits for college students, why is this effort so important for us to address?
First and foremost, it establishes that “Non-consensual sex is sexual assault,” dispelling the long held notion, by many states, that rape by extreme violence is the only sexual assault that rises to a criminal level.
There are several legal myths that must be dispelled in order to create legal sanctions against rape by fraud. The simple truth is that duplicity invalidates consent in all things. That’s why fraudsters, like Bernie Madoff, are punished when they make off with your money. Like Madoff, rapists who use fraud secure the consent of their victims. In Madoff’s case, his targets even ordered their brokers and bankers to transfer funds into his investment schemes. When viewed in light of recent California legislation on sexual assault, in which “yes” means “yes”, the actions of Madoff’s victims pretty clearly indicated that they had agreed.
But, here’s the catch…… when “consent” is achieved by duplicity, even “yes” means “no.” “Yes” requires legally valid, knowing consent. When consent is not freely and knowingly given, in other words, not coerced through duplicity, “yes”, indeed, means “no.” Even though the victim did not know that a crime was being committed against them at the time, the offender knew.
What we’re fighting against, in the effort to create sanctions against rape by fraud, is the ironic concept that “knowing consent” is important in every other human interaction, but when it sexually violates us, it’s okay. Could the fact that the overwhelming majority of our law makers are men, and that the vast majority of rape by fraud victims are women have something to do with it? And even though the protection would likely help far more women than men, the men who are targeted by female fraudsters deserve the same protections that women are being deprived of.
The concept “Non-consensual sex is sexual assault” is an important first step in ridding state laws of their onerous doctrines of “force.” Once achieved, the next hurdle is to establish that lies of identity engage you in having sex with a stranger. For instance, when someone removes their wedding band to sidle up to you, they are not only breaking their wedding vows, embroiling you in adultery and fornication, but they are also raping you through their use of fraud. Their knowing act of duplicity deprived you of your self-determination over your choice of a sexual partner, defiling you at your most intimate core.
Rape by violence undermines your knowing consent. If the attack did not penetrate you sexually, it would be “assault”, not “sexual assault” or “rape.”
Rape by doping you undermines your knowing consent.
Rape by intoxicating you undermines your knowing consent.
Rape by coercion, the threat of harm, undermines your knowing consent.
Statutory rape of an underage minor undermines their knowing consent because they have yet to attain the age of consent.
Sex with a mentally challenged person is rape when the victim is considered unable to provide “knowing consent.”
Why then is rape by fraud, the deliberate act of depriving someone of their “knowing consent” to penetrate them sexually, not punishable in the vast majority of states?
The state of Tennessee has the most appropriate language in the nation to penalize rape by fraud. Their statutes prohibit intercourse “induced by deception, accomplished by fraud and obtained by ruse.” I am currently seeking a rape by fraud victim in the state of Tennessee who is willing to come forward to seek justice through criminal prosecution of the offender. Doing so can raise awareness throughout the country and help knock down the barriers that prevent wider implementation of rape by fraud laws.
Mischele Lewis recently came forward to arrest William Allen Jordan for defrauding her of sex in New Jersey. I had helped her address the authorities in NJ to file her claim. Jordan was arrested for 2nd degree sexual assault. Although the Grand Jury failed to indict Jordan on the charge, her efforts brought about awareness by a state lawmaker who is considering language to submit in New Jersey to protect its residents from such a crime. And Jordan faces additional charges the Prosecutor filed against him for other damage to Mischele.
Could you be the next person who stands up to make a difference in your state? Write me. I’ll research the criminal statutes in your jurisdiction and let you know if you have a case.