If this legislation passes,
he’d better stay in
Rhode Island
Massachusetts is considering an update to the state’s rape law, allowing prosecutors to bring charges against those who use fraud or deceit in order to engage in sex with an otherwise unwilling victim.
The move, proposed by Waltham Rep. Koutoujian, was spurred by two incidents that, by any measure, were deplorable. In the first, a pharmacist in Wilbraham, MA (home of Friendly’s Ice Cream) posed as a gynecologist in order to give bogus exams to two women. A Westfield, MA man posed as his brother in a darkened room and had sex with his brother’s girlfriend. Thanksgiving at that house is going to be interesting next year, don’t you think?
Accordingly, the new law has some noble intentions at its core. The two aforementioned scum-buckets need some good old fashioned retribution. However, I’m not sure that the instrument fits the job. Here is the text of the new law.
Whoever has sexual intercourse or unnatural sexual intercourse with a person having obtained that person’s consent by the use of fraud, concealment, or artifice and who thereby intentionally deceived such person so that a reasonable person would not have consented but for the deception, shall be punished by imprisonment in the state prison for life or any term of years. As used in this statute, `fraud’ or `artifice’ shall not be construed to mean a promise of future consideration.” (source)
I do like the fact that the legislators thought to exclude “a promise of future consideration.” Therefore “yeah baby, I swear, I can get you a role in my next movie” will not land someone in jail.
On the other hand, philandering husbands would be looking at a little time in the stockade if their paramours got upset (believe it or not, that happens). Married? Naw, baby, I’m not married“. Or how about, “I’m going to leave my wife in a few months, trust me. So might “of course I’ll respect you in the morning, giggity giggity“.
Feel free to add your own in the comments section. One person already suggested that a woman who issued a pre-coital false statement to the effect of “yes, I’m on the pill” would be guilty of rape if the law passed.
The bill’s sponsor tried to allay fears that the law would be used to target men who might simply be described as pigs… rather than rapists.
[He] said prosecutors would consider societal norms, adding, “I don’t know a norm of society right now that would bring those up for a charge of rape.” He immediately added, “We can never say never.”(source)
I agree with the spirit of the proposed legislation. The two sleazeballs from Wilbraham and Westfield should be punished, and it seems wrong that the law would not provide the victims with a remedy.
On the other hand, this approach to the problem is just screaming for abuse. I simply don’t trust any prosecutor to apply “societal norms” when deciding who to prosecute for a charge as serious as rape. You need look no further than how prosecutors have abused citizens with obscenity prosecutions, more obscenity prosecutions, or laws regarding videotaping the police to see that I am right.
Rep. Koutoujian, your heart is in the right place. Go back to the drafting pad and write the law with a lot more precision, and even I would support it. In its current form, this law is a monster.
And I don’t mean a one-eyed trouser monster! Giggity.
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Other states permit rape prosecutions if (1) a person tricks the victim into believing they are their spouse and (2) a person sexually assaults someone in the guise of giving a medical examination.
It might be better if they make the rule more specific, as other states have. And it might be a good idea to extend the “spouse” exception to boyfriends/girlfriends.
So, “I”ll love you till the end of time” might get someone in even more trouble?
How would “of course I’ll respect you” lead to rape? I thought you just said future consideration doesn’t count?
Ack, you’re right…
Okay, “No, I don’t think you’re a trollop.” But secretly… you’re thinking “tro-lallalay tro-lolloloa, trollop!
It says “but-for” the deception. Therefore, if the person has any redeeming qualities at all and the context is not one involving fraudulent identities, I can’t see how this could apply.
Interesting – so, under this law, in the classic statutory rape hypo (where the minor claims to be 18 and the adult reasonably, but incorrectly, believes the minor’s claim) both parties would go to jail? The adult because statutory rape is strict liability and the minor because no “reasonable person,” under the standard I remember from law school, would consent when consenting would violated the law and subject him to criminal penalties. Seems like the right outcome as the law is drafted – but a bizarre outcome logically.
I think “I’ll love you until the end of time” is also a promise of future consideration, isn’t it?
Depends on what “consideration” means?
And the statutory rape scenario is probably the best one yet. I think that both parties would have to go to jail.
For the statutory rape scenario, wouldn’t that require the minor to be tried as an adult?
I don’t know. The law hasn’t been passed yet.
Wouldn’t it depend on whether she’s sleeping with him for his future respect or for his, um, performance?
Now this would’ve been a helluva better contract hypo than the one I had last semester.
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What about the Pill issue? It DOES have a failure rate; how is the woman supposed to provide proof that she was taking it at the time, 6 or 7 weeks after the fact?
There is yet another weakness in this foolish legislation, eh?
This is the whole “fraud in the inducement” issue. I can’t remember the case name (1L is a long time ago folks) but there was a guy who didn’t get convicted of rape for calling up women and telling them that the tests were back from their PAP smear, that they had a disease, and that the only cure was to have sex with a man who would transmit it to them…vaginally…in his hotel room. The judge determined that the women consented to sex with this man, and his use of a deceitful pickup line was essentially no different from making claims of non-existent finances, for example. I think this law is designed for the “cure is in my pants” guy for sure.
I would be a bit surprised if the law passed. It is rather vague in its wording and the punishment proposed (“life or any term of years”) seems rather extreme. But, then again, there are actual laws that are as defective.
The problem with the law as stated, is that (as people have pointed out) it leads to absurd results. If any such deception, etc. counts as rape, then far too much would count as rape. If we use societal norms, then (as was pointed out) the cases in question would probably not fall under the law. The first case would probably fall under any laws governing that sort of “medical fraud.”
So, if the existing laws are not adequate, then a better law than this would be needed.
http://aphilosopher.wordpress.com/
Lawyers leave it them to make this so obtuse.
It is the curse of law school education to believe that the law can prevent or redress all the perils of life. TV law dramas and slip-and-fall lawyer ads spread the disease to the public at large.
You’ve surely abbreviated the facts of the two cases. How is it that the claims of the perpetrators were believed by the victims to be credible?
I haven’t dug deeply into the two cases. You are correct. Perhaps the claims were not at all credible, but I am giving the victims the benefit of the doubt.
I appreciate your charity, but I think it’s misplaced. It’s always risky to believe what you read in the paper because every user of the First Amendment has an agenda. It is especially troublesome when public policy is driven by mere anecdote. In this case, even the anecdote cannot be verified.
In your post you said the author of the bill had his heart in the right place. Would it change your mind if it turned out that the reason these guys couldn’t be prosecuted is that the victims were not blameless, not credible as witnesses, or unwilling to testify publicly? When people say they seek “justice,” sometimes what they really want is “vengeance.”
I’m no taking sides here. I am saying that perhaps you should not, either.
Your criticism of my point of view is well taken and fair.
Perhaps I was a bit too gullible.
I just don’t see how these aren’t already rape or whatever they would be. I’ll confess that I don’t really know the law, but something like this has never happened before? Look, if some guy dresses up in a Mission Impossible costume and looks and sounds just like my brother so I hand him the keys to my car, then when he drives away, isn’t that still stealing? Maybe it is technically something else under the law? Surely you can’t say “But, you consented to him taking the car because you gave him the keys, after all.”
I don’t see why you need special laws. It just seems to me that perhaps she has a harder case to prove, maybe, but given that she really can prove that she was tricked into having sex with a man she did not want to have sex with, then she is still being forced to have sex with someone against her will. Instead of normal physical force, it is by means of deception, but that never makes a difference in any other case like stealing my car or something.
Nevermind. I see — the court is moronic. I’m sorry, but Goldenberg so clearly does not apply to this case. And besides that, rape is just sex against someone’s will. Apparently this “by force and against their will” language goes way back, but why must the “by force” be included? Why can’t it just be “against their will”. In the case of Goldenberg, he clearly did not compel her against her will to have sex with him since she explicitly consents to the act as a sex act and to having that act with him. Had he said something like “I’m not having sex with you — this is a new procedure where I use my penis,” then stupid though she may be, that would be against her will. In other words, the pharmacists doing exams scenario is against the women’s wills since they think it is nonsexual and it clearly is being done for purely sexual reasons. The brother posing as a boyfriend is clearly also against the woman’s will since he is just using her consent to having sex with the boyfriend as a means to cause her to have sex with him instead.
It seems like most other places in the western world do include fraud in the “by force” language. Mass is just wacked.
MsFeasance: A woman can prove that she obtained a prescription and bought the Pills. Even if she threw away the receipt, the pharmacist has to keep records that can be subpoenad. I’d take that as sufficient evidence, short of positive evidence that she didn’t take the Pill even though she had them (an admission, an unopened pill bottle, or unused pills found in the trash). And occasionally forgetting to take the pill on schedule – which I think is by far the usual cause of “failures” – isn’t fraud.
i just got to rape in criminal law. there are two types of fraud: (1) fraud in factum and (2) fraud in the inducement
Fraud in factum is where the fraud involves concealing the nature of the contact so the victim doesn’t know sex is happening (like the pharmacist posing as an ob/gyn.)
Fraud in the inducement is where someone knows sex is happening but the sexual act has been induced by fraud. (there was a case where someone purported to have a bloodtest showing the victim had a disease, he had a donor who had been injected with a serum, and by sexing the donor she would be cured.)
Fraud in factum is typically rape in a lot of places already, and would cover the situation with the pharmacist, and there is a typical statutory line which says that sex induced by pretending to be a husband is also rape. The Mass Legislature could fix the loophole that allowed these two cases by extending the husband fraud to include boyfriends and by saying that fraud in factum is rape. The Legislature could do all this without messing up our lying games. I doubt this article was written by a lawyer.
Also,
If the pharmacist didn’t have intercourse with the women, but just posed as an ob/gyn and conducted a fake medical procedure, a number of states have criminalized using a medical position/the appearance of a medical position for nefarious purposes, with much more narrow language than the statute listed above.
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