Rape by deception is a situation in which the perpetrator deceives the victim into participating in a sexual act that they would otherwise not consent to. Deception can occur in many forms, such as false statements or actions.
Notable cases
United Kingdom
In English law, the
Court of Appeal
A court of appeals, also called a court of appeal, appellate court, appeal court, court of second instance or second instance court, is any court of law that is empowered to hear an appeal of a trial court or other lower tribunal. In much ...
in ''
R v Linekar''
9953
All ER 69 73 ruled that the basis for such claims is "very narrow", ruling that refusing to pay for sexual services was a fraud, not rape. Cases demonstrating the law on consent as set out in the
Sexual Offences Act 2003
The Sexual Offences Act 2003 (c. 42) is an Act of the Parliament of the United Kingdom.
It partly replaced the Sexual Offences Act 1956 with more specific and explicit wording. It also created several new offences such as non-consensual voyeur ...
include ''R v Assange'' (aka ''
Assange v Swedish Prosecution Authority
''Assange v Swedish Prosecution Authority'' were the set of legal proceedings in the United Kingdom concerning the requested extradition of Julian Assange to Sweden for a "preliminary investigation" into accusations of sexual offences. The proce ...
'') (if consent was conditional on the use of the condom during intercourse, and the condition was deliberately disregarded, that was capable of amounting to rape),
''R(F) v DPP'' (the sexual act was performed in a way that broke a condition agreed previously),
and ''
R v McNally'' (deceit as to gender).
Three notable cases where this issue arose:
* The 2011
UK undercover policing relationships scandal
Around the end of 2010 and during 2011, it was disclosed in UK media that a number of undercover police officers had, as part of their 'false persona', entered into intimate relationships with members of targeted groups and in some cases proposed m ...
, in which police officers obtained sex by deceiving as to their identity, as part of their duties. Crown Prosecutors declined to prosecute on the basis that legally, the actions would not constitute rape as consent to the act itself was informed and the grounds for rape by deceit as to identity was extremely limited.
* In November 2015, British Judge Roger Dutton sentenced a 25-year-old woman, Gayle Newland, to eight years in prison for pretending to be a man as a means of having sex with an unnamed woman of the same age. Newland had made her female victim believe that she was a man by means of deception and used the deception in order to have sex with her on more than 10 occasions, using a
dildo
A dildo is a sex toy, often explicitly phallic in appearance, intended for sexual penetration or other sexual activity during masturbation or with sex partners. Dildos can be made from a number of materials and shaped like an erect human p ...
. Newland's victim was shocked to discover that her "boyfriend" was in reality female, and testified in Chester Crown Court to a jury that she would have preferred to have been raped by a man. Newland was granted a new trial in October 2016 on the grounds that Judge Dutton had given a predjudicial summation. She was convicted again and was sentenced to six-and-a-half years imprisonment on 20 July 2017.
* In September 2019, serial rapist Jason Lawrance appealed against one of his convictions, in which he had told a victim, prior to having sex with her, that he had had a
vasectomy
Vasectomy, or vasoligation, is an elective surgical procedure for male sterilization or permanent contraception. During the procedure, the male vasa deferentia are cut and tied or sealed so as to prevent sperm from entering into the urethra and ...
, but admitted afterwards that this was untrue. The conviction for rape by deception was reported to be the first of its kind in the UK.
In July 2020, the
Court of Appeal ruled that deceit as to fertility does not vitiate consent to sex, and quashed Lawrance's conviction.
United States
Massachusetts
In 2008, it was reported that a
Massachusetts
Massachusetts (Massachusett: ''Muhsachuweesut Massachusett_writing_systems.html" ;"title="nowiki/> məhswatʃəwiːsət.html" ;"title="Massachusett writing systems">məhswatʃəwiːsət">Massachusett writing systems">məhswatʃəwiːsət'' En ...
woman, unknowingly had sex with her boyfriend's brother in the dark basement that she was sleeping in. He could not be prosecuted because Massachusetts law requires that rape include the use of force.
Massachusetts State House Representative
Peter Koutoujian
Peter John Koutoujian (born September 17, 1961) is an American politician who is the current Sheriff of Middlesex County, Massachusetts and a former member of the Massachusetts House of Representatives.
Massachusetts House of Representatives
Kou ...
crafted rape-by-fraud legislation in response, however it did not pass because legislators found the law to be too broad.
California
On March 30, 1984, Daniel Kayton Boro called a Holiday Inn in South San Francisco. Mariana De Bella was a hotel clerk who answered the phone that morning. Boro told De Bella that he was "Dr. Stevens" and that he worked at Peninsula Hospital. Boro (pretending to be "Dr. Stevens") said that he had the results of her blood test and that she had contracted a dangerous, extremely infectious and possibly deadly disease from using public toilets. Boro went on to tell her that she could be sued for spreading the disease and that she had only two options for treatment. The first option he told her about was an extremely painful surgical procedure (which he described in graphic and gory detail) that would cost $9,000 and require a six-week hospital stay that would not be covered by insurance. The second option, Boro said, was to have sexual intercourse with an anonymous "donor" who would administer a vaccine through sexual intercourse with her. The clerk agreed to the sexual intercourse and arranged to pay $1000 for it, believing it was the only choice she had. Boro instructed her to check into a hotel room and call him when she was there. Boro then arrived at her room as the "donor". He told her to relax and then had sex with De Bella. Boro used no physical force and his victim knowingly allowed him to have sex with her because she believed (falsely) that her life was threatened if she did not receive this "treatment".
Boro was arrested at the hotel shortly after when the police arrived after being called by the victim's work supervisor. He was charged with rape, burglary, and grand larceny under various California statutes and convicted at trial. However, his conviction for rape was later overturned by the California Court on the grounds that California lacked a law against fraudulently inducing someone into sexual intercourse. His convictions for grand larceny and burglary were not overturned, however, because he fraudulently took $1000 from his victim.
The California Legislature subsequently amended the rape statute in 1986 to include that a rape does in fact occur when a victim is not aware of the essential characteristics of the act (the sexual intercourse) due to the perpetrator's fraudulent representation that the sexual act served a professional purpose.
Boro was arrested again for the same scheme three years later. This time he was convicted of rape under the revised California statute. It is believed that Boro used this scheme to rape dozens of women over many years.
In
Norwalk, California
Norwalk is a city in Los Angeles County, California, United States. The population was 105,549 at the 2010 census and an estimated 103,949 in 2019. It is the 58th most densely-populated city in California.
Founded in the late 19th century, Nor ...
, on February 20, 2009, Julio Morales sneaked into a sleeping 18-year-old woman's darkened bedroom after he saw her boyfriend leave. The woman said she awoke to the sensation of someone having sex with her and assumed it was her boyfriend. When a ray of light hit Morales's face, and the woman saw he was not her boyfriend, she fought back and Morales fled. The woman called her boyfriend, who then called the police. Julio Morales was convicted of rape under two concepts. He was guilty of rape because he began having sex with the woman while she was still asleep and, therefore, unable to consent. He was also guilty of rape-by-fraud because he had impersonated the woman's boyfriend in order to gain her consent. However, an appellate court ruled that the lower court had misread the 1872 law criminalizing rape-by-fraud. The law stated a man is guilty of rape-by-fraud if he impersonates a woman's husband in order to get her consent. The woman in this case was not married, and Morales had impersonated her boyfriend, not her husband. Because of this one technicality, the appellate court overturned Julio Morales's rape-by-trickery conviction in ''People vs. Morales'' in 2013.
To close this loophole in California's rape-by-fraud law, Assemblyman
Katcho Achadjian (R-San Luis Obispo) who tried to introduce a similar bill in 2011 introduced Assembly Bill 65 and Senator
Noreen Evans
Noreen Marie Evans (born April 22, 1955) is an American lawyer and politician who was a member of the California State Senate. As a Democrat, she represented the 2nd district, encompassing Humboldt, Mendocino, Lake and Napa counties, as well ...
(D-Santa Rosa) introduced Senate Bill 59. The two bills quickly passed both houses without one dissenting vote, and were signed into law by Governor
Jerry Brown
Edmund Gerald Brown Jr. (born April 7, 1938) is an American lawyer, author, and politician who served as the 34th and 39th governor of California from 1975 to 1983 and 2011 to 2019. A member of the Democratic Party, he was elected Secretary of ...
on September 9, 2013. Morales was later re-tried on the basis that the woman was asleep and re-convicted to three years in a state prison, which he had already served. He was also required to register as a
sex offender
A sex offender (sexual offender, sex abuser, or sexual abuser) is a person who has committed a sex crime. What constitutes a sex crime differs by culture and legal jurisdiction. The majority of convicted sex offenders have convictions for crim ...
for the remainder of his life.
Israel
A legal precedent in Israel classifying sex by deception as rape was set by the Supreme Court in a 2008 conviction of a man who posed as a government official and persuaded women to have sex with him by promising them state benefits.
Another man, Eran Ben-Avraham, was convicted of fraud after having told a woman he was a neurosurgeon before she had sex with him.
[
In 2010, a conviction of rape by deception drew international attention when it was first reported that a man deceived a woman into consensual sex within ten minutes of their first meeting by, according to the amended indictment, lying about being Jewish, unmarried, and interested in a long-term relationship. (In later interviews, the man later denied the allegations that he lied, but such denials were not mentioned in his plea bargain.][Lital Grossman]
From rape to racism: How and why did charges change against Arab man?
September 17, 2010) However, it was later reported that the charge had actually been the result of a plea bargain with the defendant in what had originally been a rape-by-force case where the records were sealed by the judge to protect the identity of the victim and avoid the cross-examination of her. (The sex was consensual according to one of the judges.[) The man was represented by the public defender's office, and the woman by the prosecution. Sabbar Kashur, an Israeli Arab Muslim resident of Jerusalem who was married with two children, accepted a plea bargain and an 18-month sentence on the reduced charge of rape by deception in 2010 after a period of incarceration and house arrest. Details later declassified showed that the initial charge was of violent rape, but the prosecution agreed to the reduced charge of rape by deception because of the victim's confused account and concern at facing another court appearance. They also indicated that the woman was emotionally disturbed and had a history of sexual abuse.]["Unravelling the Israeli Arab 'rape by deception' case"]
Dina Newman, September 17, 2010, BBC. The court sent the victim to a mental hospital for treatment and convicted Kashur on the lesser charge.["Arab rape-by-deception charge 'was result of plea bargain'"]
Rachel Shabi, September 8, 2010, ''The Guardian
''The Guardian'' is a British daily newspaper. It was founded in 1821 as ''The Manchester Guardian'', and changed its name in 1959. Along with its sister papers ''The Observer'' and ''The Guardian Weekly'', ''The Guardian'' is part of the Gu ...
''. Prosecutors agreed to the plea bargain in order to spare the woman a long cross-examination that might undermine her evidence.[ The public defender appealed the sentence to the Supreme Court, which postponed the sentence pending the appeal and freed Kashur from house arrest.][ In 2012, the sentence was cut to 9 months by the Supreme Court.][
]
Transgender individuals
There is much debate surrounding the topic of transgender people
This list consists of many notable people who are transgender. The individual listings note the subject's nationality and main occupation.
In some non-Western, ancient or medieval societies, transgender people may be seen as a different gend ...
who have sex with partners who are unaware of their trans identity, and whether this is categorized as rape by deception. One argument is that if a transgender person hides their biological sex from a person who would otherwise revoke consent if they knew their true identity, it fits the definition of rape by deception in countries like the United Kingdom and Israel. However, according to an article by University of Toronto Law faculty member Florence Ashley, others say that "arguments against this criminalisation have focused on the realness of trans people’s genders: since trans men are men and trans women are women, it is not misleading for them to present as they do," and Ashley specifically focuses on the transgender individuals' lack of malicious intent to deceive in these encounters. Still, there are limitations to this position and do not fully account for what Ashley calls the " messiness" of gendered experiences. Additionally, debate on what makes a transgender person fully transitioned factors into the conversation around deceptive rape. Some may believe post-op transsexuals to be exempt from claims of rape by deception, due to having fully transitioned sex characteristics not noticeably different from a biological male or female.
Notes
References
{{reflist
Decept
Rape in the United Kingdom
Rape in the United States
Rape in Israel
Deception
Sex laws