Consent, Not Foreplay Fibs, Should Define Rape

(WOMENSENEWS)–A Palestinian man was recently convicted of rape by an Israeli court after he had sex with a Jewish woman who believed he was also Jewish.

The court said in its ruling that the man committed "rape by deception" because the woman would never have consented to sex had she known he was Muslim. Focusing not on the specific religion of the offender, but on the nature of free choice itself, the three judge panel wrote:

"The court is obliged to protect the public interest from sophisticated, smooth-tongued criminals who can deceive innocent victims at an unbearable price, the sanctity of their bodies and souls. When the very basis of trust between human beings drops, especially when the matters at hand are so intimate, sensitive and fateful, the court is required to stand firmly at the side of the victims–actual and potential–to protect their well-being. Otherwise, they will be used, manipulated and misled, while paying only a tolerable and symbolic price."

A few years ago, a young woman in Massachusetts went through something similar, only the result from the court, and the reaction of lawmakers, was quite different.

The victim awoke in her boyfriend’s bed in the middle of the night and had sex with what turned out not to be her boyfriend, but her boyfriend’s identical brother who sneaked under the covers and deceived her. He was convicted of rape on the theory that there can be no knowing consent if a woman wants to have sex with Johnny but ends up with Fred.

Court Focuses on Force

The Massachusetts Supreme Judicial Court overturned the conviction, reasoning that even if she didn’t knowingly consent, the perpetrator didn’t use force. Without force, there is no crime.

The court could have said there was force because tricking someone into consenting is the kind of force the Israeli court sought to prevent in its ruling, and courts in the United States routinely interpret "force" to mean whatever they want.

One example: A New York court recently held that force was present when a man, without consent, groped a woman’s genital area while she was clothed. The court ruled that "such unwanted contact " . . . [e]ven if done lightly . . . is "forcible" because "women are entitled to be protected from unwanted, physical sexual contact by males."

In Massachusetts, as in many states, the "force" bar has been set much too high because there can be no crime of rape–even if all agree there was no consent–unless the force used was more than that which was necessary to complete the sex act. This puts many types of unwanted, nonconsensual sex beyond the law’s reach, thereby, as the Israeli court wrote, devaluing "women’s bodies and souls."

Another Massachusetts example of this devaluing involved a pharmacist who pretended to be a doctor and told pregnant women he could not fill their prescriptions without first conducting a vaginal examination. He had them accompany him to a private location where he conducted a penetrating genital "exam." He was charged with rape but the charges were dropped when the prosecutor decided that he could not prove rape because the guy used no "force."

Well-intentioned legislators in Massachusetts came to the rescue and proposed the creation of a new crime called "rape by fraud," which would cover perpetrators who use deception to cause victims to consent to sex. The idea was quickly ridiculed as over and under inclusive.

Gray Area Too Vast

Yes, this crime would enable the prosecution of twins who rape their brothers’ girlfriends and fake doctors. But it might extend to men who pose as rock stars or otherwise inflate their resumes in a ruse to get women into bed. The gray area was too vast.

At the same time, the "rape by fraud" proposal wouldn’t cover the types of behavior that really should be criminalized, such as when a mentally ill woman is subjected to unwanted sex by a predator looking to take advantage of a vulnerable person. (Right now it’s a crime if the victim has retardation, but not if she suffers from a delusional disorder.) Or when a therapist takes advantage of a trust relationship and convinces a patient to have sex. These abuses are never prosecuted because physical force isn’t necessary to coerce the victim’s consent.

What we really need is a law that simply allows for the prosecution of rape without force. Period. If force is used, we’ll call it rape with force.

We already have exactly these types of laws in place for crimes against our property.

If you take my stuff without my consent, it’s called larceny. If you also use force, it’s called robbery.

But if you take my bodily integrity without my consent, it’s not a crime at all, unless you also use force. Crazy, right?

The U.S. Supreme Court has defined rape as the most severe insult to the self, short of murder; worse than any crime against property. Yet the law protects stuff better than it protects women’s bodies.

No Perfect Way

There’s no perfect way to pass laws that make people respect each other.

But rape without force is a good choice. It covers the fake doctor cases and much more, but doesn’t make a felony out of an occasional foreplay fib.

It’s a subtle distinction but one that matters, because the focus is not on whether the offender’s actions provided a substitute for the element of force, but rather, whether the victim’s choice was "knowing" and "voluntary."

This doesn’t forbid fantasy foreplay but does require that my decision be the product of free will. It means I can choose to have sex with you if you pretend to be a cowboy, if you pretend to beat me with whips and chains and even if you pretend to belong to a certain religion–so long as I know you’re pretending.

But if you know I wouldn’t have sex with you (condom-free) if you have AIDS or if you really hit me with chains or if you know my religion forbids sex in certain circumstances, and you lie about any of it, you’ve interfered with my "knowing" consent and committed the crime of rape "without force" because it was done without my freely given consent.

Wendy Murphy is adjunct professor at New England Law/Boston where she teaches a seminar on sexual violence. She’s a former sex crimes prosecutor and author of "And Justice For Some." An impact litigator who specializes in violence against women, Wendy consults and lectures widely on sex crimes, violence against women and children and criminal justice policy.

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