Could this be considered a form of rape?

I know the state of Texas has both “rape” and “forcible rape” in their penal code. I am curious though. Other then statutory rape how do you have rape without force? Rape is suppose to be violent and I don’t see how you can have violence without force.

Marc

I think that KellyM’s point that saying rape involves violence is an outdated idea - she says:

Hence, since the guy lied in order to get consent, he committed rape.

I, however, would disagree. That isn’t to say that KellyM’s argument is wrong, but that I think it leads to the cheapening of the crime “rape”. What we generally understand by “rape” is a violent and humilating crime; the trick pulled by the radio phone-in guy was nothing close to this.

Whether he committed a crime or not is a matter of opinion. KellyM says that he has, and goes on to call it “rape”. I cannot agree with that, as if that’s the case then (using the examples I outlined earlier), then I’ve been raped - though I could never claim such a thing, and certainly wouldn’t call myself a “rape victim” in front of a real rape victim.

You should cite to the official Illinois state code and read it more closely. You will note that 720 ILCS 5/12-13(a)(2) makes it a Class 1 felony to commit sexual penetration where the victim was “unable to give knowing consent”. See also 720 ILCS 5/12-17 (for definition of “consent” applicable in these statutes). (The page you cited to omits 720 ILCS 5/12-17, a curious omission.) Consent induced by fraud is not knowing consent. If I still had my criminal law casebook around here, I could cite you a couple cases on that point. I no longer have access to Westlaw, however. I’d say that Illinois makes it illegal to have nonconsenting sex, including the case where consent is induced through fraud.

By the way, Asylum, not nearly all of the law is written in the statute books. Including that little bit about “consent induced by fraud being invalid”. You’ll find that one in the case law.

Invoking the threat of slander proves your legal naivete.

sirjamesp: the point you raise is part of why many states have renamed the offense to “criminal sexual assault” or some other less-loaded term. (The other reason is to escape the ancient common law requirement of forcible resistance.) Juries are more willing to convict on “criminal sexual assault” than on “rape”, especially when force is absent. However, the Model Penal Code still calls the offense “rape”.

As a “real” rape victim (I was raped in Austin, Texas in 1984 by a strange and creepy man who claimed to be a police officer), I would have no problem with her claiming to be a victim of rape.

Well, that pretty much throws my hypothetical position right out of the window…

KellyM I see you’re point, and how your argument can lead to that conclusion. And if that is in fact the law now in some states, then all I can say is that the country is more fucked up than I thought.

Specifically, you used the phrase

(bolding mine)

Now see, I don’t think the woman in this situation was unable to have knowledgeable consent, she just didn’t do it. She could physically have asked to see an ID, or tried to verify some other way that the person was who he stated he was. Just because she was unwilling to verify his identity, does not mean that she was unable to.

Yes. According to Robocop, it would be. In the movie, he says “Miss, you have suffered an emotional trauma… I’ll call you a rape counselor.” Even though she wasn’t actually raped.

You’re right, of course. I believe, since it’s written, it would be libel.

Not that I think you committed libel. But that definition has always been one I like to keep straight.

No, she was unable to because she was deliberately misinformed. Her consent was unknowing because of the affirmative deceitful acts of the perpetrator. He denied her the ability to give (or withhold) knowing consent when he made a material misrepresentation of fact to her.

Consent induced by fraud is no consent.

And the tort is?

  • Rick

I would not consider it a rape but a criminal sexual assault. A very minor criminal sexual assault.

Fraud is a very tough crime to persue because victims feel stupid falling for the con. Just because this con job got her out of her pants instead of taking her money does not make it not a crime.

The part I find most disturbing is the fact that the entire incident was broadcast the next day on the radio.

trying to understand this legal stuff

So, if a girl says she’s 18 and she’s really only 15, and an adult male has sex with her because she said she’s 18, has he been raped? His consent was based on her misinformation.

It is my understanding that even if he was unaware of her true age, he would be guilty of statutory rape. So, would they legally have raped each other?

:confused:

Wait just one moment – I think you’ve palmed a card.

As a general contractual proposition, consent induced by fraud is not consent.

But knowing consent, as applied to sexual relations, has generally been held to simply mean understanding the nature and consequences of sexual acts, and voluntarily agreeing to them - and of course having the statutory capacity to consent. I can give you plenty of Virginia cases on this point… admittedly, I can’t speak to Illinois law, but there appears to be no Virginia case that stands for the proposition that consent obtained by pretending to be someone famous is vitiated.

But with all due respect, KellyM, I would say the burden is on you to come up with case law that finds consent to sexual relations, induced by a lie about being a celebrity - or something closely on point - to be invalid.

  • Rick

Doesn’t it have to be reasonably believed? And is it reasonable for her to rely on the word of some guy she met in a bar that he was really who he said he was? I don’t think this makes it as rape.

Virginia, I believe, qualifies as one of those “backwoods” I alluded to earlier. Virginia has lots of other stupid laws, too. :rolleyes:

I don’t have my criminal law class notes or materials anymore; if I did I suspect I could find the case we discussed in class that was on point to the issue of fraudulently obtained consent to sex.

Note that I assumed arguendo that the misrepresentation was material. It is quite arguable that the misrepresentation was not material – a jury could reasonably conclude thus – in which case the consent was not induced by fraud. But the OP (in my opinion) clearly presented the misrepresentation as essential to obtaining sex which would not otherwise have been obtainable – and in my book that constitutes consent induced by fraud.

Furthermore, my opinion here is not based on the law of any jurisdiction (although it is certainly informed by it) but my opinion (we are, after all, in IMHO). And it is my opinion that the conduct described in the OP should be criminally punishable. A state which fails to do so, in my opinion, needs to revise its criminal statutes.

BlackKnight: I believe that it should be criminal to lie to someone in order to get them to have sex with you. Under this standard, her lie about her age is sufficient to violate this standard and I think she should be considered to have committed a crime. As to statutory rape, it is a defense that the offender reasonably believed that the victim was “of age”. Since the “victim” is a minor, in most states she would not be guilty of any crime but could be adjudicated to be a “child in need of services” or a “juvenile delinquent” or some other similar term.

ENugent: The gullibility of the victim is a defense?

In my opinion, the case mentioned in the OP might be criminal fraud, but it is not rape.

However, it does present an interesting question. Other posters have already provided dozens of scenarios in which rape could be quite ludicrously construed in the same manner. But how about this one: a man creeps into a woman’s home, gets into bed with her in the dark, pretends to be her husband who has actually stepped out for a smoke or something, and has sex with her. Or let’s say it’s Halloween, and someone comes along wearing the same costume as her boyfriend… Okay, both scenarios are far-fetched enough to be practically impossible, but if either was to happen, we might not dismiss it so lightly.

Let’s forget about the fact that the girl in the OP was silly or shallow enough to have sex with a man because she thought he was a D.J. After all, we’re not supposed to be judging her character here. I still think that she wasn’t raped, but what level of deceit would warrant that accusation?

Well, I also got the impression that you were stating law. Your response to Asylum seemed to imply that he was wrong as a matter of law.

Looking in my criminal law casebook the cases on misrepresentation tend to say essentially what Bricker said. The question of “consent” is whether the person appreciated that they knowingly had sex with a person, not whether they knew the person’s background. Even states that eliminate the violence requirement seem to say that the consent is invalid if failure to give consent would lead to further repercussions (failure to graduate, etc.)

This may have changed since I was in school, of course, but most states seem to have settled on a higher level of fraud (even backwoods California which requires the fraud be intended to create, and actually induce, fear).

And, in my opinion, the OP’s scenario should not constitute rape. Even if the guy lied, the misrepresentation was not material. The woman knowingly engaged in the sexual act and (presumably) derived pleasure from the act. Had the man actually been a DJ, she would have received nothing more than what she got from him as a non-DJ. If you want to argue that she would have received more psychic pleasure from having sex with a DJ, then you have to allow for prosecution of a man who tells a woman that she is the most beautiful woman he’s ever seen or prosecution of a woman that tells a man she loves him when she really doesn’t.

KellyM, I’m sure the voters of the Commonwealth appreciate your discerning judgement, and will take it into account as we elect our legislators this November.

You’re right, however, that we’re in IMHO, and that the OP asks, “Is this a form of rape,” giving rise to the inference that the question is, “Should this be criminally punishable,” rather than, “Is this criminally punishable.”

So, putting aside my conviction that, in the vast majority of jurisdictions, the OP does not describe a crime, my opinion is that it ought not be a criminal act.

Without question, the consent to sex is a key element. But to suggest that consent cannot exist without some sort of full disclosure on the parties thereto is to create a class of crime well beyond the ordinary common law.

For instance, what of the local janitor, who claims to be a stockbroker one night at a bar. Does the woman’s eventual discovery of the truth, and revulsion at having slept with a mere janitor, transform the act into a crime? If we accpet as true her assurances that she never would have slept with a janitor, under the definition you’re urging, that misrepresentation becomes material, and the act a crime. And if that hypothetical, too, is clear-cut, what of the woman who sleeps with a stockbroker who only made $65K last year, but told her he was a $2M man? Again, we accept, as true, her assurance she’d never sleep with a man making less than seven figures. Is his act a crime?

What of the man who claims to like the Grateful Dead, to bed a fan, when in reality he can’t stand the band? Even if the misrepresentation was the only reason for the sexual consent, it is not criminal.

Coercion need not be physical, and fraud that tends to create a coercive environment is clearly criminal. And I agree that mere lack of verbal or physical resistance does not, of itself, constitute consent. But giving knowing consent, within the meaning of the criminal sexual assault laws, to sexual activities, does not require a complete and accurate résumé from each partner.

…in my opinion. Which, happily, matches up closely with the vast majority of jurisdictions in the United States.

  • Rick

Ah, pennylane, nothing is impossible as long as there are people slimey enough to sink to any depths necessary. In fact, your scenario has happened. One casebook author (Perkins) has found that there is no consensus in the courts on whether it is rape to impersonate a spouse (I believe he dealt with spouses only). Some courts say it isn’t rape because the person got what they narrowly believed they were getting – sex.

Others have held that it is rape because it is fraud in factum. In other words, the spouses did not get what they thought they were getting. They believed they were getting an act of marital intercourse, but they were actually having an act of adultery perpetrated on them.

Caveat: I pulled this information from my casebook which cited Perkins, so things may have changed since then.

Well, he was, in a way. His elaboration of statutory rape and the “construction” of “force” set off alarms. Rape is not defined, anymore, by “force” and I perhaps reacted badly to that egregious error in stating the law. We’ve fought hard and long to eradicate the archaic and wrongful notion that “it’s not rape unless the victim struggles” and I really don’t like seeing this false notion used, no matter how innocently. (By the way, Bricker, the history of the common law offense of rape and the requirement therein of “forcible penetration” is why I really don’t give a flying fuck about what the common law has to say on this particular issue.)

I am willing to admit that the misrepresentation in the OP may not have been material, using a “reasonable person” standard. I am not willing to accept, however, that sex obtained by material fraud is not rape. We can argue over materiality (e.g. lying about your HIV status, versus lying about your grave dislike of poodles), but that discussion is better suited for Great Debates.

However, I still find it odious to lie to someone just to get them in the sack, and I have no problem with criminally punishing people who do so (providing, of course, that clear proof of the lie can be had). If your prospective partner asks you if you’re a stockbroker, you believe that telling her truthfully that you’re a janitor will cause her to refuse to consent to sex with you, and you lie to her in order to obtain your consent, then I believe you have engaged in criminally culpable conduct. Bricker may well have a valid point that, as a matter of public policy, our judicial system cannot distinguish this from the person who lies about being a stockbroker for some other reason other than to get laid. I’m more than happy to let juries decide these questions; that’s what we have them for. And I’m not particularly worried about people getting prosecuted for rape unjustly; if you don’t lie to your sexual partners, you won’t have anything to worry about, eh?

What I find perplexing, though, is the number of people who are defending the “right to lie”. Lying is wrong, plain and simple. If you lie and bad things happen to you, tough shit. Maybe you should practice the fine art of not answering questions you don’t want to answer, instead of lying.