NEW YORK — If you get a girl to sleep with you by claiming you run a billion dollar hedge fund and drive a Maserati, when you're really more of a used Ford Escort kind of guy, can you be prosecuted for rape?
Last week, an Arab Israeli man was sentenced to prison for telling a woman in Jerusalem he was a Jewish bachelor in order to get her to sleep with him. He was convicted on a charge of “rape by deception.”
Could a similar prosecution take place here in the Unites States? And if so, just what would constitute rape by deception?
Legal experts say those who lie in the course of courtship are unlikely to face jail time — most U.S. states don't have rape by fraud laws, and even in those that do, prosecutions are extremely rare.
But in recent years, there have been attempts to broaden rape laws in order to deal with this complicated and controversial issue.
In 2008, Mass. State House Rep. Peter Koutoujian helped craft rape by fraud legislation after the state's Supreme Judicial Court said it could not rule on two rape cases because of the state’s rigid definition of rape as involving both force and non-consent.
In one case, a man from Westfield, Mass., was accused of rape after he allegedly impersonated his brother in order to have sex with his brother’s girlfriend in the middle of the night. The sex was consensual, but the court ruled that “intercourse where consent is achieved by fraud does not constitute rape.”
In the other, a pharmacist named Nicholas Creanza allegedly posed as a gynecologist in order to give exams to two consenting women in Springfield, Mass. The court ruled that it could not convict Creanza based on the state’s 1959 definition of rape, but pointed out that the case presented a “loophole” in the state’s rape laws that state lawmakers should address.
Koutoujian and two district attorneys from Massachusetts took the lead in proposing a new law that would allow the courts to rule on rape by fraud cases. Their goal was to do so without hamstringing the Bostonian at a bar who makes up a story about his heroic feats in order to seduce a woman.
More than two years later, Koutoujian said, the legislation has yet to pass. It is simply not a top priority for lawmakers right now, he said.
Several other states — including California, Tennessee, Alabama and Michigan — have forms of rape by fraud or rape by coercion laws, but prosecutions are rare, said Wendy Murphy, a former Massachusetts prosecutor who teaches a seminar on sexual violence at New England School of Law.
Murphy, who is an advocate of changing rape laws in Massachusetts, said she approves of the Jerusalem court’s ruling, despite the visceral reaction many in the United States — including students in her classroom at New England School of Law — have against it.
Murphy would like to see U.S. courts should remove the notion of “force” from the definition of rape altogether.
“What I’ve proposed as a more representative alternative is to have a crime called penetration without consent, and avoid the force issue,” Murphy said. It would then be up to the juries to determine what is and what is not consent on a case-by-case basis.
'I am LeBron James'
While many states have created laws to deal with “unequal relationships” — such as those between a doctor and a patient or a teacher and a student — defining fraud in equal relationships is much more difficult, said Patricia Falk, a professor at Cleveland-Marshall College of Law who has written extensively on the subject.
“What’s the difference between ‘I will love you forever and we’re going to get married’ and ‘I am LeBron James?’” Falk asked. “What constitutes romantic inducements and things that are fraudulent enough for the law to take recognition of?”
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