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Jill has been blogging for Feministe since 2005.
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260 Responses

  1. Comrade Kevin
    Comrade Kevin July 22, 2010 at 4:02 pm |

    One could apply “deception” to all sorts of areas, as you noted. We could be talking about class, particularly if a woman consented to have sex with someone who she thought was of the same social class as she was, only to discover that he was her “social inferior”.

  2. Xeginy
    Xeginy July 22, 2010 at 4:09 pm |

    I guess it just depends on what a person sees as fraud or deception. The Israeli case where the man coerced women into sex in exchange for welfare benefits – that’s fucked up, because that’s a form of manipulation used by someone in a powerful position. But lying about your age? Social status? Race? Height? Even gender/sex? I don’t know if that counts as extreme enough deception. But if it doesn’t, is that just my bias, or is there a way to determine deception that is “bad enough” for a rape case?

  3. Thomas
    Thomas July 22, 2010 at 4:12 pm |

    But doesn’t a person — any person — have a right to refuse to be sexual with any other person, at any time, for any reason, including a reason that you or I find abhorent?

  4. kb
    kb July 22, 2010 at 4:14 pm |

    I agree with you that the particular instance is racist, but. . . where are you going to draw the line, and who gets to claim that you know what’s important for everyone?
    At the end of the day what standard would you use that says the brother lie is rape but this one isn’t? because I’m not sure there is one coherent argument to distinguish between the two.

  5. Sonia
    Sonia July 22, 2010 at 4:17 pm |

    But doesn’t a person — any person — have a right to refuse to be sexual with any other person, at any time, for any reason, including a reason that you or I find abhorent?

    True, but does it apply retroactively? If I only have sex with Democrats and guy identifies as such and then later becomes a Republican can I sue him for rape?

  6. Sonia
    Sonia July 22, 2010 at 4:21 pm |

    Anyway, I do agree with kb here. Deception is deception, especially deliberate deception. And as anyone who has been to an online dating website knows, race is a very important factor in people’s dating preferences. So either the brother case is not rape or this one is too.

  7. kb
    kb July 22, 2010 at 4:21 pm |

    Jill-why then is the brother lie meriting a rape conviction? assuming that the women felt equally violated, which lies aren’t rape and which lies are?

  8. Meghan
    Meghan July 22, 2010 at 4:22 pm |

    So maybe I don’t know ANY of the full stories here, but do people not pay attention to who they are having sex with anymore? You know, I’m all for hooking up with whomever you want, whenever, you want, when it’s consensual, but some people (as in the Jewish woman’s case) should take a little responsibility when they have sex with someone who turns out to not be exactly who they thought that person was.

    I’m not saying that rape by deception is illegitimate, but if my S.O. walked in in the middle of the night when I did not expect him to be home and he proceeded to move straight to sex, I would stop him and wonder what’s going on? Wouldn’t it seem fishy and worth looking into just a little bit?

  9. kb
    kb July 22, 2010 at 4:24 pm |

    Jill-to me, sure maybe. But I don’t think that what I consider an important deception or not overrides what the woman herself thinks.

  10. Thomas
    Thomas July 22, 2010 at 4:31 pm |

    Jill, to the extent it could actually work, I am fine with a civil remedy, but I would worry that a jury would simply substitute their own prejudices about what they founjd acceptable and unacceptable in a sex partner for an assessment of how important it was for the deceived person. We may like that process when it means that racists and antisemites can’t recover, but that very possibly means that transphobes and biphobes will. And, really, if someone says it’s very important to them to never have sex with a Yankees fan (such people are heavily concentrated in New England, so though I’m a baseball agnostic, I have perhaps a regional dog in that fight), do we really want to see a jury just laugh it off and tell them that their deeply held values about who can be intimate with their bodies is silly?

    As an aside, Jill, I remember a discussion between law profs Graham Hughes and Akil Amar that unfolded just about like that. They were discussing the exclusionary rule, and as you may know, Amar believes the evidence produced by an unlawful search should not be excluded. Hughes said, in his elegant faintly Welsh accent, “if there ain’t no right, there ain’t no remedy.” Amar said that there should be a remedy in the civil courts, where people who were unlawfully searched could sue. Hughes retorted, “there’s just about two problems with that; it’s utterly impractical and nearly amoral.”

  11. kb
    kb July 22, 2010 at 4:37 pm |

    and telling women- “this violation counts, that one doesn’t” isn’t scary? exactly what we need is more victim blaming. I mean, okay, I am assuming that mr. Kashur knew she’d only have sex with someone Jewish and therefore lied accordingly. exactly the same as the brother.
    but I’m with Thomas-so, deeply held values that I want to sleep with my husband but not his brother count, but other deeply held values don’t? really? I find that much more scary

  12. kb
    kb July 22, 2010 at 4:40 pm |

    while I might be with you on failure to disclose vs. active lying, no, I’m not really convinced I want to live in a world where I don’t get to decide what information is an important criteria about who to have sex with.

  13. kb
    kb July 22, 2010 at 4:41 pm |

    okay, html failure. the quote-pretty much anyone who lies or does not disclose almost anything that a sexual partner deems crucial to their decision to consent. That seems really problematic, no?
    should have been before the last response

  14. Miss S
    Miss S July 22, 2010 at 4:44 pm |

    I’m not sure I can call consensual sex rape because of being misled because I’m not sure how that would play out in the courts. What if a guy tells me he is a financial broker and I find out that he is a cashier? Or if I sleep with a guy who tells me he is single and then find out he is seeing someone else? How will that work in the courts?
    Also, I find it disgusting that people are not being honest about STD status. For me personally, sex is tied up with feelings and emotions and connections. Someone being dishonest about that and sleeping with me would make me feel very violated. Especially when HIV can irrevocably alter a person’s life if transmitted.
    But since sex is more than just the physical act for me, being honest about who you are is very important. I suppose if I saw it as just a physical act, I may feel differently.

    That said, using your power to coerce someone is also disgusting. If a woman thinks that a man has power over her financial well being and saying no might mean losing her residence and health insurance etc, then she really cant say no. Have sex with me or go hungry is not really a choice.

  15. Safiya Outlines
    Safiya Outlines July 22, 2010 at 4:46 pm |

    Utterly disgusted that anyone can think of defending this.

    Any situation where someone feels they have hide or lie about their race is terrible, and for someone to feel that sleeping with an Arab (and let’s be clear it the Arab part that is the problem, not the Not Jewish part) is so abhorrent..!

    How can anyone defend such disgusting views, particularly when they occur in a country where some don’t even view Arabs as worthy of equal human rights.

    Can we have some context here please? It’s not like supporting baseball, or a political opinion, this verdict is the product of a bigotry that hideously impacts many lives. It is wrong.

  16. Thomas
    Thomas July 22, 2010 at 4:51 pm |

    Well, it’s all problematic. The criminal process has gatekeepers — grand juries and prosecutorial discretion — that can work well or poorly. The civil process is much more subject to the judge’s whims, as dismissals on pleadings or summary judgment are much more common, though the burden of proof is lower. One gives more control to the prosecutor, the other to the plaintiff, and both depend on juries to find facts. Neither works well. Both are driven by biases. Ceteris paribus, I’d rather have errors made on the civil side so that people don’t get wrongly thrown in jail. But ceteris ain’t always paribus (I stole that line from an expert witness), and we live in a society that doesn’t really vindicate women’s right to say no to a particular individual’s sexual advances, let alone to her determinations that certain personal characteristics are disqualifying.

    As a matter of principal, so many people sort of say, “hey, people lie all the time” or decide for themselves what things are okay to lie about and what are not — including people on this thread saying which things are important and which are not. I’m against that. The principal of sexual self-determination, to me, is sacrosanct. Saying something materially false and misleading to get another person to be sexual when they otherwise would not is just plain wrong. And, as Professor Hughes said, “if there ain’t no remedy, there ain’t no right.”

    So for me, it follows from that that there must be a remedy; that we can’t just decide, “hey, it’s not important, you should let it go.” All other things being equal I think a civil remedy is preferable, but if it proves impractical, then I’m not willing to throw my hands up at that.

    My view, which I’ve written about before, is that virtually nothing (I’m willing to make an exception for transmissible infection) requires affirmative disclosure, though. What’s material information to you may not be material information to me, and so we can’t know what someone “should” disclose to a partner. So my view is we should all have to ask any — any fact we need to know about a partner: gender identity, trans status, ethnicity, fertility, monogamy, orientation, religion, politics or baseball team, if we need to know it’s on us to ask. In my view, misrepresentation is exclusively what’s affirmatively misrepresented, not what’s implied. As a practical matter, people will disclose some things much of the time, but I don’t think they have to anticipate what their partners need to know.

  17. Emily
    Emily July 22, 2010 at 4:52 pm |

    I think that part of Jill’s reaction here is to the word “rape” and that this post engages in a discourse of “what is really rape and what is not really rape” that is overall not useful. This is a situation in which a country defines a crime of “sex by deception” as criminal. Talking about whether it’s “really rape” just buys into the idea that “rape” is some especially heinous crime and that if the facts of a particular case in point don’t seem “that bad” then it’s not “rape.” It’s the same driving force as those who say only stranger-jump-out-of-the-bushes rape is “really rape.”

    The question here is not “is all sex by deception really rape?” it’s 1) is all sex by deception wrong; and 2) should all sex by deception be criminalized (or should all sex by deception be punished by the same range of punishment if criminalized or was prosecutorial discretion properly exercised in this particular Israeli case).

    Just as larceny by false pretenses is a different crime than robbery (or, for that matter, armed robbery), sex by deception could be criminalized, but with less significant penalties than forcible rape or than armed forcible rape. It’s important to acknowledge that while all instances of not entirely consensual sex are wrong, that doesn’t mean all should be punished the same as stranger who jumps out of the bushes and puts a knife to your throat rape.

    In the Israeli case, what the man did was wrong. A person should not lie to a sexual partner about something that person knows the sexual partner would care about and might make the sexual partner decide not to have sex with hir. However, one can still think that it should not rise to the level of a criminal conviction or that it should not be punished by 18 months in jail/prison, especially when that result reinforces the legitimacy of the complainant’s racism.

    Personally, I think that anyone who purposefully lies in order to get another person to have sex with hir that ze wouldn’t otherwise have, has done something wrong. Certainly something as wrong as say, trespass, which, newsflash, is a CRIME (here in Virginia punishable by up to one year in jail; other crimes here in Virginia include being drunk in public – which includes inside of bars, btw – and driving without a valid license.) A lot of really really minor shit is a crime.

    Now, should the sex by deception person go to jail for 18 months, no, I personally don’t think that is appropriate. But treat it like a drunk in public fineable misdemeanor or a trespassing jailable misdemeanor, I don’t really have a problem with that given all the other stuff we criminalize. (And including the fact that taking someone’s MONEY by false pretenses is a crime, I don’t see why convincing someone to have sex by false pretenses should be treated radically differently – there is caselaw defining the difference between “mere puffery” and material misrepresentations, it’s not like there’s no precedent for figuring this stuff out).

  18. Safiya Outlines
    Safiya Outlines July 22, 2010 at 4:55 pm |

    Please, can people stop viewing this from a USian perspective and start seeing this in the context it occurred in.

  19. Indigo Jo
    Indigo Jo July 22, 2010 at 4:55 pm |

    What I don’t get is: how did he manage to deceive her anyway, given that he is a native Arabic speaker and would have an accent to match? Regardless of the racist aspect of this (and I don’t think the victim’s prejudice is any excuse, if it’s true), I don’t believe this story is true at all.

  20. Morgan
    Morgan July 22, 2010 at 4:59 pm |

    Hello:

    I don’t know how religious this woman is, but many practicing Jews believe it is against their religion to partner with people outside the faith. Before we jump to state that this woman is a racist, could we maybe consider that this could be a religious choice, and not one based on a social prejudice/hatred of Arabs? To that point, Jews can sue if they are provided with meals that they are told are Kosher and are not. I don’t see how this is much different—rape, maybe not, but definitely a violation of someone’s faith.

  21. Brendan
    Brendan July 22, 2010 at 5:04 pm |

    Jill, could you expand your argument a bit? I don’t fully see your distinction yet. In your argument, you say “It’s because the husband’s brother intended to have non-consensual sex with you. ”

    How is that different here, where the woman would not have consented had she known he was not jewish?

  22. Kristen J.
    Kristen J. July 22, 2010 at 5:09 pm |

    I think from ethical perspective the question is whether the perpetrator knew or should have known that the victim would not have chosen to have sex with him had they known the truth. In the brother hypothetical, the brother knew that the woman would not have had sex with him if she had known that it was not her boyfriend. In the present case we don’t know whether the perpetrator knew that his perceived Jewishness was a necessary condition for her to have sex with him. If she failed to disclose that she was a racist, then I don’t think he should be held legal responsible for rape (although this is not to say that she wasn’t raped which is a completely valid perspective for her).

    I recognize that this places the responsibility on the victim of a deception to be clear about hir deal-breakers, but the alternative is to violate the privacy of others who are not in a position to know whether something is really important to another person and may only commit a deception to ensure their personal safety.

    Anyway, I think that works, but let me know if you see problems.

  23. Sonia
    Sonia July 22, 2010 at 5:11 pm |

    How can anyone defend such disgusting views, particularly when they occur in a country where some don’t even view Arabs as worthy of equal human rights.

    To some of us it is kind of disgusting to defend guys who will say anything to get into a woman’s pants. Would you also defend an Israeli who pretends to be an Arab to sleep with a Palestinian woman?

  24. Indigo Jo
    Indigo Jo July 22, 2010 at 5:12 pm |

    Before we jump to state that this woman is a racist, could we maybe consider that this could be a religious choice, and not one based on a social prejudice/hatred of Arabs? To that point, Jews can sue if they are provided with meals that they are told are Kosher and are not.

    The Jewish religion also says don’t have sex outside marriage. It doesn’t say do it with a Jew and not with a Moabite or whatever.

  25. Safiya Outlines
    Safiya Outlines July 22, 2010 at 5:20 pm |

    Sonia – Do you seriously not understand the power differentials here?

    Israelis and Palestinians/Israeli Arabs are not treated equally in Israeli society. I guarantee that if a Palestinian/Israeli Arab tried to bring a similar case in Israel, it would be dismissed.

  26. WestEndGirl
    WestEndGirl July 22, 2010 at 5:21 pm |

    @Indigo Jo re: this
    “What I don’t get is: how did he manage to deceive her anyway, given that he is a native Arabic speaker and would have an accent to match?”
    You clearly haven’t been to Israel or have any knowledge about the country, because if you had you would realise that lots of Israelis are native Arabic speakers as well and some Arabs and other non-Jewish communities also primarily converse in Ivrit.

  27. boredandtwitchy
    boredandtwitchy July 22, 2010 at 5:21 pm |

    Indigo Jo, there are such creatures in the world known as Arab Jews.

    I don’t mean to speak for Jill, but the distinction I see her making here, and with which I agree, is that in the case of the woman who had sex with her brother-in-law, the woman had sex with someone to whom she did not consent. It would be like me agreeing to sleep with someone and arranging a rendezvous; however, upon the designated time, a different individual arrives and proceeds to have sex with me without my knowing that he is not the person with whom the original arrangement has been made. The person I’m having sex with in that scenario is not the person I originally consented to, thus making it non-consensual. In the case of the Jewish woman and the Arab man, he may have lied about some aspect of the identity, but the person who showed up at her bedside was still the man she consented to have sex with. In that case the sex was consensual, although the consent was brought about by deception. Whether or not this case should be criminalized is a bit beyond my thinking at the moment.

    I’m not sure if this is what Jill meant, or if she would have explained much better than I have–perhaps I should have left the explanation to her, eh?

  28. Kristen J.
    Kristen J. July 22, 2010 at 5:22 pm |

    Morgan,

    Before we jump to state that this woman is a racist, could we maybe consider that this could be a religious choice, and not one based on a social prejudice/hatred of Arabs?

    Just because a choice is enshrined in a religious belief does not make it un-racist. Religions often have racist and xenophobic belief systems.

  29. Lauren
    Lauren July 22, 2010 at 5:33 pm |

    I almost can’t believe what I’m reading, so here goes:

    The woman specifically asked the man if he was Jewish, and he lied and said yes. He also told her he was interested in a long term relationship. This is different than exaggerating your height. Religion is extremely important to many people when choosing long-term partners and the fact that he deliberately lied really sticks in my craw. Was the woman racist for not wanting to sleep with Arabs? Probably. Did the man lie in order to get sex? Yes. This violates the principle of enthusiastic consent that I hold dear. Furthermore, ranking sexual violations of women and classifying some as “not-rape” helps no one. So, I’m going to have to go with Thomas on this one: A person has the right to refuse sex for any reason, even a racist reason.

  30. Kristen J.
    Kristen J. July 22, 2010 at 5:42 pm |

    A person has the right to refuse sex for any reason, even a racist reason.

    OF COURSE you have the right to refuse sex for any reason. The question is whether if Person A doesn’t KNOW that Person B would refuse sex if they knew whether Person A is guilty of rape.

  31. Alara Rogers
    Alara Rogers July 22, 2010 at 6:00 pm |

    You do all realize that taken to a logical conclusion, this law would allow men to charge women for rape because the women claimed to be virgins and were not.

    I mean, France just granted an annullment on that ground… and I thought that was hinky enough. But a law that says “if you lie about a material aspect of your identity or history which, if you had disclosed it, would lead a person to sexually reject you, for the purpose of deceiving them into sex, you have committed rape”… would by definition include every woman who claims she is not a virgin the first time she has sex with a man who wouldn’t have slept with her if she wasn’t a virgin.

    It also includes every woman who claimed that she was on birth control before sex and turned out not to be. It also includes every woman who lied about the number of men she has slept with in the past, if the actual number would have been a deal-breaker. It also includes any woman who is infertile and knows it who conceals her infertility from a man who didn’t want to have sex with an infertile woman. It also could include any woman who continued to have sex with a man she was married to or in a long-term relationship, after she had had an affair, if he would have terminated the relationship upon learning of the affair.

    In fact, if any deception practiced by a sex partner for the purpose of enticing the other partner into sex is rape, it would probably cause the rates of women convicted for raping men to actually *match* the rates of men convicted for raping women, given that patriarchal societies are more likely to want to stick it to women for what’s perceived as bad sexual behavior, and the stereotype that women are liars anyway.

    Now, if you feel in your heart that if a woman claims she’s a virgin when she isn’t in order to get a man who would have rejected a non-virgin to have sex with her has just raped that man… well, then I guess this argument won’t convince you. But if you feel that the idea that a woman lying and claiming she is a virgin when she isn’t constitutes *rape* is an offensively bad idea, then you can’t consider a man lying and claiming he is Jewish when he isn’t to be rape.

  32. Sungold
    Sungold July 22, 2010 at 6:17 pm |

    Jill’s analysis is spot on. I’m not a lawyer, and I’m not formally trained in ethics (though I do live with a trained philosopher – does that count?).

    As a layperson, though, I see a massive gulf between a person pretending to be a whole ‘nother person, and a person misrepresenting one aspect of the person he or she actually is. If my husband’s brother tried to pass himself off as my husband in the dark of night, that’s an entirely different set of circumstances than various long-lost boyfriends who played up their desire for a long-term relationship. The first deserves to be criminally prosecuted. The second is a matter of garden-variety assholery. Increasingly I see a need to separate the ethics of sexual behavior from the legal penalties imposed for clear violations of consent and bodily autonomy. Not every case off assholishness is equivalent to rape.

    Also, Alara’s point is right on the money. Reversing the genders if a pretty useful exercise in this case.

    And just for the record: No, my brother-in-law has never tried such a thing. This is a purely hypothetical example!

  33. Marle
    Marle July 22, 2010 at 6:17 pm |

    I think the the big difference between the brother case and other “deception” situations is that, with the brother, she was in a dark room and she had just woken up. She wasn’t in a fully coherent mental state. Also, many people in long term relationship imply consent to each other in ways that acquaintances who’ve never had sex with that person should clearly not take as consent. For example, there are many people who really like it when their partner wakes them up with sex, but obviously it’s rape if you start sex with someone who’s unconscious unless they’ve told you clearly they want you to. Though that wasn’t exactly what happened, it’s a similar concept, and completely different from telling someone you’re Jewish or whatever.

  34. SeanH
    SeanH July 22, 2010 at 6:25 pm |

    Important detail: according to this Haaretz article, Sabbar claims he didn’t identify himself as Jewish – he identified himself as “Dudu”, apparently his nickname (he says even his wife calls him that), and she assumed that he was Jewish.

    I also haven’t seen much written about the massive incentives for an Israeli Arab to try to pass as Jewish in everyday life – surely a very strong influence?

  35. Elizabeth
    Elizabeth July 22, 2010 at 6:35 pm |

    I was thinking about this situation in light of the rape case. In torts we read a case where a man was found liable for assault because he gave his wife genital warts and didn’t disclose that he’d contracted the illness during their separation. It was the same logic that she never would have consented to sex if she was aware that he had genital warts. I never agreed with the case, but it does provide an example here of a civil remedy.

  36. Elizabeth
    Elizabeth July 22, 2010 at 6:35 pm |

    whoops, I was quoting what Jill wrote in 17: “pretty much anyone who lies or does not disclose almost anything that a sexual partner deems crucial to their decision to consent”

  37. Phil d
    Phil d July 22, 2010 at 6:44 pm |

    It seems as though there is an assumption here that if he lied about his ethnicity, then he did it so that she would consent to having sex with him. I have to wonder how closely related the the lie about ethnicity actually was to the consensual sex. Did he tell her he was Jewish on the way up the stairs? Weeks/months before they had sex? It is undoubtedly rape when someone presents themselves as a different actual living individual person, and temporally, one can conclude that the lie was with the immediate intention of rape.
    I think intention is really important, and might clear up some of the gray areas in defining rape, at least in this type of situation.

  38. Bagelsan
    Bagelsan July 22, 2010 at 6:44 pm |

    The woman specifically asked the man if he was Jewish, and he lied and said yes. He also told her he was interested in a long term relationship. This is different than exaggerating your height. Religion is extremely important to many people when choosing long-term partners and the fact that he deliberately lied really sticks in my craw.

    How is it different? I can be irrationally opposed to short people just as much as she is opposed to other religions.

    I’m gonna have to go with “too bad, so sad” but not criminal on this one. And it really is too bad — it’s miserable being lied to about things you find important. But I don’t like the direction this court case went; people can have really valid reasons for lying about stuff like religion, age, etc. and I don’t want to call any sexual interaction that happens subsequent to those lies “rape.” It would be impossible to tell if the accuser was just bullshitting after the fact: “he told me he was the best lover in the country but it sucked!” could become grounds for rape. And what if the person “lying” just plain changed their mind? If I say “yeah, I totally love you and I want to stay together forever!” and then I break up with someone 3 years down the line does that make my liable for 3 years of retroactive rape? Ridiculous.

    This isn’t (like Jill has said over and over) about defining how the woman felt — she may have actually felt raped, I don’t know. But I don’t think it’s a viable legal precedent to make what this guy did (while extremely assholish) a criminal offense. I think the woman should be allowed to sue for emotional damages or whatever civilly, but the criminal system can’t be responsible for enforcing dating criteria.

  39. Emily
    Emily July 22, 2010 at 6:47 pm |

    Re: Safiya’s comments, I agree that context is important, and I think I contributed to a US focus with my earlier comment. Given the power structure in Israel, I think it is quite reasonable to believe that this particular case was influenced by racism/bias against non-Jews and that Jews who similarly lied to a non-Jewish Arab person might not/would not be treated similarly. That would lead me to conclude that this particular conviction is unfair and worthy of protest. It would not lead me to conclude that criminalizing sex by deception is bad policy. The fact that a criminal law can be or is applied in a biased manner to unfairly punish minorities/those without power does not, to me, mean that the conduct described in the law should not be criminal. That’s like saying that because rape laws were used during Jim Crow to support white supremacy with “legal lynchings” that rape (and here we’re talking the forcible kind) should not be criminalized. I don’t doubt that the sex by deception law can be abused, by complainants, prosecutors, and judges, in a way that supports the dominant power structure. But that’s not enough of a reason, in my opinion, to say that the conduct shouldn’t be criminal.

    Perhaps I am jaded as a criminal defense attorney who sees people go to jail (NOT for 18 months, but still, go to jail) for driving without a valid driver’s license, trespass, and other relatively minor offenses, but I don’t think the criminalization of sex by deception is out of line with the criminalization of other misdemeanor offenses. That doesn’t mean that this particular man’s conviction was right or just. But Jill’s conclusion is not just that this particular conviction and sentence were unjust, but also that sex by deception laws should not criminalize lies intended by the liar to get the other person to have sex with hir when otherwise ze would not. And I disagree with that. I do think it’s reasonable that any criminal offense should include the INTENT to obtain sex by lie/ruse. It should not include lies/omissions that are inadvertent or not intended to trick the other person (a la intent to defraud).

  40. jfpbookworm
    jfpbookworm July 22, 2010 at 7:01 pm |

    My basic rule: if you know someone would refuse to have sex with you if they knew a fact, and you intentionally withhold that fact, you’re violating their right to consent. It doesn’t matter if you think their reason is arbitrary, or irrational, or prejudiced–it’s their decision to make, not yours. If you don’t like their reasoning, don’t have sex with them.

    And no, I’m not saying this particular fact pattern should or shouldn’t be criminalized as rape – personally, I think that society (the one that folks on this blog consider themselves to be part of) has a hard enough time saying “sex without consent is wrong” even in the cases which would seem to be open-and-shut. But I think the discussion of the ethicality of the act is a worthwhile one, and saying “the only thing that matters is the criminal sentence, everything else is off-topic” is not only needlessly limiting, but actively hinders the idea that actual (not just “legal”) consent is important.

  41. chad
    chad July 22, 2010 at 7:08 pm |

    High Court Justice Elyakim Rubinstein said a conviction of rape should be imposed any time a “person does not tell the truth regarding critical matters to a reasonable woman, and as a result of misrepresentation she has sexual relations with him.”

    Is this actually language from the opinion? It’s very unclearly stated. Does it mean that the untruth has to be reasonably regarded as “critical”? What does “critical” mean? In any case, I wonder if you agree with this precedent, Jill, and deny that it leads to a rape in the case under consideration, or whether you just disagree with the precedent. My sense is that it is so hard to understand the quoted view that it is impossible to tell whether one should agree with it. But I guess you might think that the precedent is fine and that whether a guy is Jewish isn’t reasonably regarded as “critical”.

  42. Matt
    Matt July 22, 2010 at 7:56 pm |

    I agree with Jill. There are certainly areas of unethical/amoral conduct that are simply not given to criminalization and regulation by the criminal justice system.

    Misrepresentation, ranging from inane puffery or even omission to something more malicious like marital status, is part of courtship. Everyone engages in these behaviors to a certain extent.

    What I find most offensive, outside of the ridiculous racist biases of the High Court’s decision, is the idea that this standard is apparently never reciprocal. I wonder if a man were to complain about being deceived into having sex, whether the High Court would decided similarly. Indeed, it seems that certain assumptions about sexuality were made by the Court when they made the standards. Perhaps they assume that women don’t engage in similarly deceptive behavior and even if they do, there is no harm because men always want sex no matter how it happens: Sexist. Or maybe the Court made the assumption that women are just incapable of the same sort of deception as men: More sexist. Alternatively, the Court might assume that women are naturally or socially expected to engage in this sort of deception and thus unnecessary to criminalize: Most sexist.

    Obviously, I could be ignorant of certain cultural factors in Israel that determine that women only come to romance in good faith. I mean that rape by deception isn’t like traditional, physically violent rape where physiology matters in normative heterosexuality. Women can rape by deception too. What is more probably in play, culturally, is shame. Not shame about the deception but shame about with whom she had sex. She is definitely not to blame for her feeling of violation: however, the decision whether to take a stranger at their word without verification exercises a certain agency that women are capable of exercising, despite what the Israeli High Court says.

    I argue that criminalization is wrong because this behavior isn’t devient enough and standards that reliably abate this harm are too subjective to be able to anticipate their enforcement – negating their deterrent effect.

  43. kushrenada
    kushrenada July 22, 2010 at 7:57 pm |

    hello all
    (love the site long time lurker first time poster and all)
    The story on the BBC website says that (according to himself) the man didn’t attempt to pass him self off as Jewish, the lady in question simply assumed the man was Jewish because of the nickname his friends called him.
    “He told reporters that he is known by friends and family by the nickname Dudu, which is more commonly used by Jews called David.”
    (source)
    http://www.bbc.co.uk/news/world-middle-east-10717186

    I don’t know how much this changes things ethically or legally though
    I must also say that this case is obviously massively racist
    and when these previous stories…

    http://www.jpost.com/Home/Article.aspx?id=155387
    and
    http://www.thenational.ae/apps/pbcs.dll/article?AID=/20090925/FOREIGN/709249932/0/rss

    …about attempts to police sexual interactions in Israel are taken into account. I think we can gain a fuller picture about what this case is about and what it says about Israeli society.
    and that’s not even getting into how badly Israeli Arabs are treated generally
    Gideon Levy says
    “I would like to raise only one question with the judge. What if this guy had been a Jew who pretended to be a Muslim and had sex with a Muslim woman?
    “Would he have been convicted of rape? The answer is: of course not.”

  44. The Amazing Kim
    The Amazing Kim July 22, 2010 at 7:57 pm |

    Should a woman go to jail for rape if she says she’s a virgin when she has sex with a man and it turns out she’s not?

    I guess in that case the woman could keep up that deception for the rest of her life* but the man we’re talking about wasn’t going to convert to Judaism any day soon. So the feeling of deception wasn’t just about that night, but about the possibility of a long-term relationship.

    To make the hypothetical situation parallel the original one, the woman would have to lie about her sexual history and her desire for a long-term relationship, when she’s actually just after a fling. Which would make her a prat. Like the guy. So now I’ve confused myself.

    *(I’m assuming that this hypothetical situation isn’t a one-night stand, because in the original situation the woman thought the encounter was the start of a long-term relationship)

  45. Gayle Force
    Gayle Force July 22, 2010 at 8:34 pm |

    As a law student, I really agree with what Jill has said. The law is imperfect, and as Thomas stated, problematic. But there are a lot of things to be reckoned with here that can’t be under criminal law – ideally, ethically, we want people who lie and use deception to get someone to sleep with them to be held accountable. But to use the criminal justice system, that would just sweep too wide, and pick up women who claimed they were virgins when they were not, or trans people for “lying” about their sex. Yes, everyone can decide to refuse sex at any moment for any reason, no matter how abhorrent I think those reasons are – but it is a different thing entirely to criminalize it. If I lie to someone about how many people I have slept with, and my partner finds out after we have had fully consensual sex that I said a lower number than was true, should I be thrown in jail? How big or small a lie would it have to be? And considering some people might only want to have sex with Yankees fans, do we want to use government force and power to come down on those folks who were really Mets fans and lied about?

    I think that we start going down a weird slippery criminal law slope when we call “consent” as a legal term that wide. How will this work in the future: “Well, I consented to having sex with him as a wealthy white Christian person, but not as someone who has had a bisexual experience he didn’t tell me about. So that is rape.” We’d be litigating over omissions. Based on value systems (“I needed to know he had had sex with other men. That’s important to me”). Consent is enthusiastic participation in a sexual act. To take it away from the sexual act I think makes it mean something less powerful, and brings the state into places it shouldn’t be. I don’t want the state to be able to decide whether the amount or quality of the personal information I have told my partner, according to my partner’s ideals, makes our consensual sexual act rape or not rape. We all have a right to decide how much personal information we share (I don’t always want to share that I have been raped, for instance), and nary a one of us I bet has never lied to a partner ever. I don’t want the state that much in my bed. Or anyone’s.

    So, ethically, is this guy who lied a total douchebag? Yes. And I think civil suits are a possibility to remedy that. But there is definitely a line I think should be drawn about what we think should be criminalized and what shouldn’t be. And when you get the state into the business of ensuring the disclosure of personal information . . .

  46. Robin
    Robin July 22, 2010 at 9:07 pm |

    I’m with Jill on the difference between impersonating someone else and misrepresenting an aspect of your identity as it pertains to legally punishable sexual misconduct.

    The genital warts story, and the hypothetical of a person not revealing they have AIDS, or that they’re not using a contraceptive, seem akin (not to equivocate getting aids with getting pregnant, obviously) in that they have clearly defined repercussions for the deceived party, whereas sleeping with someone who turns out to be different than they said they were has no repercussion except hurt feelings. I think they should be grounds for a civil case.

    Then the question is, what of someone who pretends to be of the legal age of consent, when actually they’re not? Is the onus completely on the deceived party, who would then face serious criminal charges? What precautions should be legally mandated for one to take so as not to be responsible for having sex with someone who isn’t as old as they alleged? What if you use a fake ID to trick someone into committing statutory rape? Is that less serious an offense than tricking someone into selling you alcohol?

  47. Mike Crichton
    Mike Crichton July 22, 2010 at 9:22 pm |

    Indigo Jo:

    What I don’t get is: how did he manage to deceive her anyway, given that he is a native Arabic speaker and would have an accent to match?”

    Just like all native Spanish speakers have a distinctive accent in English, huh?

    Kristen j:

    In the present case we don’t know whether the perpetrator knew that his perceived Jewishness was a necessary condition for her to have sex with him.

    If he hadn’t strongly suspected that was the case he wouldn’t have felt the need to lie. That said, I agree the criminal case was bullshit. If that legal reasoning were valid, then a guy who was a racist of the “one drop” variety later found out a woman he’d slept with was 1/64 black and concealed that from him, she’d be a rapist, and that’s just ridiculous. IMO, of course.

  48. EAMD
    EAMD July 22, 2010 at 9:30 pm |

    First, I really have to take issue with expressions like “traditional” or “classic” rape, especially when they’re actually being used as synonyms for “violent” rape. In a base sense, this is a person establishing trust and using that trust to violate another person’s rights. That’s pretty “classic” rape, if you ask me.

    That said, I think there are differences between telling a lie that directly and fraudulently establishes the terms of consent and telling a lie that may facilitate a positive impression of you. “Don’t worry baby, I’ll wear a condom”, “Don’t worry baby, I’m on birth control”, or “Hey, it’s me, your boyfriend” directly influence the terms of consent to a specific sexual act. In my opinion, “I’m Jewish”, “I’m totally for Obama, all the way”, or “Oh, you like kung fu? ME TOO!” might increase the odds that someone will like you enough to have sex with you, but they don’t directly impact the terms of consent.

    The question in this case, then (at least for me), is whether Kashur knew sex with this woman was off the table unless he was Jewish, and thus said he was for the purpose of negotiating consent for a specific sexual act. If he did, then I think the court made the right decision.

    But really, I doubt it. The article states that right off the bat, he introduced himself as a Jewish bachelor. I guess it’s possible, but I doubt “I only have sex with Jews” was her opening line. So I tend to fall more on Jill’s side. Though I think it’s the macro questions about consent, assault, and communication that would ideally be the bulk of discussion.

  49. BVS
    BVS July 22, 2010 at 9:32 pm |

    The one thing missing from this report is that the Arab man denies that he told the woman he was Jewish. Instead, he says, he used his nickname – Dudu – which the woman took to mean he was Jewish. This is a BIG difference then just telling the woman he was Jewish given the charges against. Regardless, this case is racist and bullshit, but Arabs in Israel are consistently persecuted and profiled and so the fact that the case assumes he is lying about every aspect of his story (including the nickname part of it) plays into that. I think that this needs to be corrected in your blog posting – he claims that he did not say he was Jewish, he said he used his nickname. Therefore, that would not constitute as a lie.

    Anyways, despite that, good reporting on this, and I haven’t seen a lot of good reporting about it.

  50. GallingGalla
    GallingGalla July 22, 2010 at 9:32 pm |

    But doesn’t a person — any person — have a right to refuse to be sexual with any other person, at any time, for any reason, including a reason that you or I find abhorent?

    Of course, Thomas. Do you really think that Jill is saying otherwise? She’s talking about when deception rises to the level of rape. Boy, I thought you were capable of more nuanced than that.

    Saying something materially false and misleading to get another person to be sexual when they otherwise would not is just plain wrong.

    I have to say as a trans feminine spectrum person, that hearing this come out of the mouth of a cis person scares the shit out of me. Many a radical feminist, and not too few cis people (male and female) in general, believe that unless a trans woman discloses that she is “really a man” to a cis woman before having sex with said cis woman, that said trans woman raped the cis woman by deception, just by being trans. I hope this isn’t your view, Thomas, because your statement skates close to an endorsement of that view.

    Not to mention, that said statement is really using a sledgehammer to drive in a tack. Are you somehow proposing that the following scenario:

    Woman: Hey, what’s this, you’re putting on glasses?

    Man: Huh? I don’t understand what the issue is?

    Woman: You said you had 20/20 vision!

    Man: I do, when I wear my glasses.

    Woman: You deceived me!

    is at the same level as a man pretending to be somebody else to deceive a woman into having sex? Are you saying that in the above scenario, the woman has a right to bring criminal charges because the guy didn’t tell her that he wears glasses?

    Please, can people stop viewing this from a USian perspective and start seeing this in the context it occurred in.

    Also, this.

    In general, I’m really disappointed in the level of all-or-nothing thinking on display in the comments. Not to mention a complete ignorance of power differentials involved (whether it be Jew/Arab in Israel, or cis/trans in the West).

  51. abby
    abby July 22, 2010 at 9:43 pm |

    i’m really weirded out by the conflation that keeps happening of jewish identity with things like baseball teams and cosmetic procedures and enthusiasm for martial arts. an israeli woman’s identity as a jew is likely to be a much bigger deal to her by orders of magnitude than my identity as a red sox fan is to me.

  52. Darcy
    Darcy July 22, 2010 at 9:49 pm |

    As a side note, I’m finding the arguments about how it’s somehow more of a crime because he might have been deceiving her about his interest in a long-term relationship weird, and way too impossible to put your finger on for legal purposes. For example, I haven’t known myself whether I was really interested in long-term relationships while swearing to someone I was and convincing myself I was, because relationships are hard to understand like that. I’ve also done other unethical things in relationships, like cheating and leaving people for their friends and all that nasty business. Is my lack of morals in relationships (at least, by some people’s standards) now supposed to be governed by law?

    I did want to note here–correct me if I’m wrong–that the woman originally brought this case as a normal rape case, but that the prosecution decided to only try to go for a rape-by-deception charge. Obviously we don’t know what happened or not, but to me this says that this might not have been just an issue of rape-by-deception, but more taking advantage of racism to get whatever kind of conviction she could after her real charges were shoved aside. Of course, that doesn’t change the problem of the courts being willing to rule this way.

  53. Kristen J.
    Kristen J. July 22, 2010 at 10:13 pm |

    If he hadn’t strongly suspected that was the case he wouldn’t have felt the need to lie.

    Eh….people lie about things during “courtship.” I’m sure we’ve all dated people who have lied about their age, employment, financial status, number of sexual partners, relationship status, etc…etc…etc. I dated a guy who consistently lied about his height…by about 4 inches…I was still a foot shorter than him regardless so I couldn’t tell…but it was a reflection of his own insecurity.

    Not that race is similar to height of course. But if something so minor can make someone lie…imagine how difficult it is to be a disenfranchised person who faces significant backlash if their identity is revealed. Consider that his racial background may not have come up in the specific context of their sexual relationship. He may generally try to “pass.” And I don’t blame any disenfranchised person from attempting to pass.

  54. Bagelsan
    Bagelsan July 22, 2010 at 11:39 pm |

    I’m really uncomfortable with the idea that if I don’t out myself as a member of a marginalised race, I’m guilty of rape if a racist has sex with me.

    But hey, if they didn’t mention they were a racist ahead of time then it could actually be a simultaneous retroactive co-rape. So… prison for everyone? …yay?

    (Okay, I know it’s not funny but it’s sort of funny due to massive ridiculousness. :p)

  55. Lindsay Beyerstein
    Lindsay Beyerstein July 22, 2010 at 11:41 pm |

    The CBC radio show As It Happens ran an in-depth interview with an Israeli journalist covering the case for Haaretz. The way he told the story, the alleged deceiver-rapist never said he was Jewish in so many words, he just introduced himself by a traditionally Jewish nickname, “Dudu” (sp?), which the guy says everyone calls him in his day-to-day life. It’s also important to note that he and his accuser had only known each other for a few minutes before they decided to have what both sides describe as consensual sex. Why is this important? Because it seems unlikely that he knew his accuser well enough to know whether she would consider his religion/ethnicity to be a sexual deal-breaker.

    Should every Israeli Muslim/Arab have to go through life disclosing his or her religion/ethnicity on the assumption that no Israeli Jew would ever have sex with them if they knew the truth? That makes it sound like being Arab/Muslim is the equivalent of having an STD or something else that’s so bad or dangerous that every reasonable person ought to assume that every other reasonable person would consider to be a potential deal-breaker.

    I know little of Israeli culture, but what I’ve learned of human nature and individual diversity makes me suspect that there are plenty of Israeli Jewish women who don’t give a damn about their partner’s religion/ethnicity. This legal standard is offensive because it makes as many assumptions about Israeli Jews and their motives as it does about Muslims.

    If someone says, “I won’t sleep with you unless you’re Jewish/HIV-negative/single, or whatever… Are you?” Then I’m more sympathetic to civil or criminal consequences for lying to the person’s face in order to get sex. But if you meet someone and you hit it off, and they don’t ask you in so many words, then you should be legally (if not morally) allowed to let them assume whatever they want

  56. piny
    piny July 22, 2010 at 11:44 pm |

    Which would make her a prat. Like the guy. So now I’ve confused myself.

    Would it make her a rapist, though?

    He also told her he was interested in a long term relationship.

    You know that this happens all the time, right? People constantly lie in order to get other people in bed with them. Yes, I want to marry you. Yes, I want children. No, I don’t want children. Yes, I’ll respect you in the morning. No, I don’t mind living near your parents. No, I don’t mind an open relationship. I’ve only slept with two other people. I’m a virgin. I’ve never done drugs. I love it when you do that. I don’t do this very often. I’m thirty-five. That’s my favorite book!

    People constantly cheat on their lovers and spouses, too. Do you think that these lies make their partners more or less willing to sleep with them? Do you think these lies should be criminal, or actionable?

    It’s wrong, and not good for the relationship itself, but it’s just about universal. Read an Isaac Bashevitz short story or three. Promises like this aren’t legally binding unless they’re made down at city hall. The reason they aren’t is that enforcing such a law would–just like it has here–lead to a whole lot of evil.

    Criminalizing dishonesty in this specific instance is racism, and it’s wrong.

  57. Lindsay Beyerstein
    Lindsay Beyerstein July 22, 2010 at 11:48 pm |

    Also, people say a lot of things they think they mean when they’re horny that don’t seem so compelling later on. Who’s to say he wasn’t interested in a long term relationship when he said it?

  58. piny
    piny July 22, 2010 at 11:52 pm |

    I’m really uncomfortable with the idea that if I don’t out myself as a member of a marginalised race, I’m guilty of rape if a racist has sex with me.

    I’m really uncomfortable with the idea that the law should honor the psychic damage a racist suffers when they come into casual or intimate contact with the targets of their racism. Can a father-in-law sue if he accidentally welcomes a member of a hated minority into his home as a beloved son? Can you sue a friend for passing well enough to merit your racist friendship? Can you sue an employee for passing well enough to merit your racist trust?

    This law burdens members of the hated group with the task of preserving hatred and the boundaries that hatred maintains. The law shouldn’t operate that way.

  59. Aidan
    Aidan July 22, 2010 at 11:56 pm |

    When i first heard about this the *first* thing that popped into my head was the horrific legal crucifixion of Black men in the American South by white men via rape charges. It was a racist crusade.

    It’s not that i don’t think this woman might feel violated–it’s that this whole situation reflects a terrifyingly racist dynamic. Seeing that dynamic carried out by law terrifies me.

    I’m trying to think about this outside the context of this article, but it’s hard. If i consent to sex with a guy and later find out he is something i percieve to be abhorrent–a murderer, or a racist, i will feel very angry. I will feel violated. But is it rape? No, because at the time, i consented. Was it unethical on his part? Yes. Do i have a right to be angry? Hell yeah. But i consented. Ill informed, but i consented.

    In this situation, though, I don’t think the guy was being unethical by omitting facts about his identity! He faces racism. I defy anyone, anyone, to tell me that it’s ‘wrong’ for a person who faces unbelievable racism in their day to day lives–having their movements restricted and controlled on the basis of their race, being vulnerable to casual abuse by authorities who will never be punished because they are Jewish and he is Arab– to try and undo the effects of that racism on their lives by ‘passing.’ A person born into a Black family in the aforementioned era, who could pass for white, would never, ever be called ‘unethical’ for trying to overcome racism by omitting their ethnic backround–doing so would result in horrific injustice being levied against them.

  60. Aidan
    Aidan July 22, 2010 at 11:58 pm |

    I mean, i think the guy is a skeez ball. He’s married and he has kids–but being a skeez doesn’t mean that you deserve to bear racism or don’t deserve to elude it. Everyone deserves to elude racism.

  61. Miss S
    Miss S July 23, 2010 at 12:31 am |

    that said trans woman raped the cis woman by deception, just by being trans.

    Well for me it wouldn’t be about the partner being trans. Its about being dishonest. I would feel violated and uncomfortable if someone didn’t disclose their orientation or flat out lied about it before having sex with me. I wouldn’t be able to trust that person and I would not be interested in continuing a sexual relationship if I couldn’t trust the other person.
    However, I pointed out earlier that I’m most likely to have sex with someone I am in a relationship with/have been dating for a while. I like to take time to get to know people. Which would make deception even worse, because it means I have been strung along. I still, however, would not call it rape. Just really fucked up. I don’t like being deceived or lied to.

    Lying/omitting something that would most likely cause the other person to retract any consent is violating. What if you found out that the guy you slept with lied about his past and that he actually physically and/or sexually abused someone?

    I don’t think it should be a criminal act because I don’t know how the courts would decide what is acceptable and what is not.

    I do think an exception should be made for people who knowingly lie about their STD status, especially HIV. That has very real and negative impacts on someone’s life. It’s absolutely disgusting that people are willing to knowingly risk lives.

  62. Kristen J.
    Kristen J. July 23, 2010 at 12:43 am |

    Miss S,

    A trans woman is not dishonest if she fails to disclose the sex assigned to her at birth. She is a woman, presenting herself as a woman. There is absolutely no deception of any sort involved it that scenerio.

    Trans persons should not be required to disclose their history. Doing so implies that their identies are somehow fraudulent which is patently false.

  63. Lindsay Beyerstein
    Lindsay Beyerstein July 23, 2010 at 12:46 am |

    Morally, I think every reasonable person should assume that if they have an STI, their partner has a right to know. It’s not just for STIs. Morally, if a platonic friend is supposed to come over for dinner and a bridge game, and I’ve got a cold, I’ve got a duty to tell them that I’m sick and let them decide whether they want to risk coming over. I can’t make that decision for them. On the other hand, it would be madness to let the criminal law second-guess me.

    A dramatically increased chance of getting an STI from one partner compared to the average person is an objectively good reason to reconsider the decision to have sex with them. It’s not a reason that everyone, or even most people, will necessarily find compelling but it’s something every reasonable person would at least have an opportunity to consider. There’s something inherently bad about getting any kind of infection, regardless of your feelings, because said infection might be painful or itchy or disfiguring, or render you sterile, or put you on meds for the rest of your life, or give you cancer, or even kill you.

    There’s nothing intrinsically bad or harmful about having sex with another human being that you’re attracted to, even if they belong to some category society arbitrarily says is taboo. You’re not hurt unless you have some idiosyncratic belief that some humans are less-than and that’s not a belief that society should coddle anyway.

  64. Bagelsan
    Bagelsan July 23, 2010 at 1:02 am |

    Well for me it wouldn’t be about the partner being trans. Its about being dishonest.

    I think being voluntarily naked in front of you is about as honest about one’s genitalia as you can except a sexual partner to be. I mean, if it’s not something harmful nor is it something you’re likely to discover in the course of enthusiastically rolling around nude with a person, there’s no reason for them bring it up, yeah?

    Unless you’re big into having potential partners sign a contract disclosing all their medical history (“I do not have, have never had, and will never have a penis…”) you can’t expect someone to bring up something that is irrelevant to sexual contact. I’m likely not going immediately volunteer to a mate that I used to have buck teeth* as a kid (yay braces) because I don’t anymore and so who cares? Maybe it would come up, maybe it wouldn’t, but it shouldn’t really matter either way, it’s my business. And that’s waaay less fraught than a lot of other topics can be.

    I mean, if I were involved with a person for a while and eventually found out they didn’t trust me enough to share personal stuff I might be a little hurt, but it wouldn’t be dishonest of them in any way. It is not assault to fail to talk about private stuff with a loved one (or with a casual hookup, or anything in between.)

    *trans != buck teeth, obviously :p

  65. Bagelsan
    Bagelsan July 23, 2010 at 1:08 am |

    The people most likely to pass on STIs are the people who don’t know they have them.

    I think that’s where knowledge and intent would have to come in, when assigning blame or whatever. If I had no idea I had XDR TB (the waaay drug-resistant kind) and got on a plane it would be terrible but not my fault in any way, I think. But when that guy a few years ago knew he had XDR TB and got on that international flight everyone was absolutely (and rightly, imho) outraged, and as I recall he got in a bit of trouble. If he had got on that plane with the intent to spread XDR TB he would probably have been treated like a terrorist because that’s him really trying to hurt people. It makes sense that these 3 different situations would have consequences of various severity.

  66. Lindsay Beyerstein
    Lindsay Beyerstein July 23, 2010 at 1:13 am |

    Logically, if you know you have an STI, you can assume that you’re much more likely to transmit it than the a member of the population at large. That’s an inescapable fact, given that the prevalence of virtually any STI is higher among the diagnosed population (near 100%, assuming the test is accurate and the infection clears slowly) vs. the undiagnosed population (considerably less than 100%, maybe 50%, or 20%, or <1%, depending on the infection and other factors about the population). So, if you have an STI, you have a duty to disclose because any reasonable person would at least think twice about sleeping with someone who was many times more likely to give them a disease than the average person. I can think of good excuses why someone with a stigmatized disease might not fess up, but there are good excuses for almost any sleazy thing a person might do under sufficiently dire circumstances.

  67. Lindsay Beyerstein
    Lindsay Beyerstein July 23, 2010 at 1:23 am |

    If you don’t know you have an STI, you’re off the hook as far as I’m concerned. You can’t disclose what you don’t know; and “ought” implies “can.” What people who don’t know they have STIs should do is a red herring in a discussion about the obligation to disclose.

  68. convexed
    convexed July 23, 2010 at 2:01 am |

    I understand identities as constructed from many different materials, including religious beliefs, sexual histories, political values, etc. I guess I see this concept of ‘identity’ as a social construction, fluid, multiply resonant, and understood differently across various culture/historical moments. We choose or exert control over many aspects of our identities.

    We don’t choose the bodies we’re born into, and some of us have limited options when it comes to negotiating societies that mark certain bodies as inferior, illegitimate, dangerous, or immoral.
    So, no, I don’t equate a preference about sexual partners who support a certain sports team with a requirement of disclosure for marginalized bodies of their private bodily histories or ethnic/racial/national origin to dominant groups or individuals in a sexual encounter or relationship.
    Also, the significant participants of multi-person sexual encounters are bodies. The brother of the boyfriend invaded the space of their (assumed) on-going consent with his unfamiliar body in an act of total deception about his entire being–not just his interest in long-term relationships or religious beliefs.
    It’s not a matter of religion, or music taste, which is one (socially constructed) facet of a person. It’s a matter of a bodily fraud; the implication of an entirely other person (body *and* mind) into the structure of an existing relationship, without the knowledge or consent of anyone in that existing relationship.

  69. convexed
    convexed July 23, 2010 at 2:12 am |

    So, okay, there are tricky areas (like disclosure of STI). I would be more assured of this as a legit exception if so much of the conversation wasn’t always premised on stigmatizing assumptions rather than objective, non-fearful understanding of the way pathology works and the actual risks of transmission in certain situations.
    I think the issue can’t be discussed productively if participants demonstrate the logical leap that, because HIV/AIDS can devastate lives and bodies, that a person who is HIV positive is a walking hazard and therefore ethically forfeits any rights to privacy and respect for the ‘greater good’ of everyone who wants to be afraid of them.

  70. Miss S
    Miss S July 23, 2010 at 2:15 am |

    I’m not sure why me participating in an online discussion on a particular topic is “harping.”

    Jill you’re right: orientation was not the right word for what I was trying to express. Also a couple of you are right that a trans doesn’t have to disclose their status. But I do believe in them being honest if asked. Although it’s unlikely that I would ask that. I was referring to lying as opposed to omitting information. I said I typically take the time to get to know someone first and build a connection. So I see a difference between someone lying to my face and not telling me something. I think it’s up to everyone to decide what they need to know before a sexual encounter. I expect honesty from people who want to have sex with me. I also give it in return. There may be things in my past that would turn someone off. That’s okay because 1. if they can’t accept me for me or vice versa it’s not really a good match and 2. I don’t “deserve” to have sex with them any more than they deserve to have sex with me. I have had talks about past sexual encounters and I think it’s perfectly acceptable to say “hey I’m not comfortable talking about this” or “I can’t share that with you.” I’ve done it and I understand needing to feel comfortable with someone before sharing things.

    No one is talking about the people who don’t know they have an STD. I’m referring to people who knowingly do. It’s not okay to put someone else’s health at risk so that someone can get off. No one deserves to have sex with someone else. If someone can’t be honest with me about their health issues that may affect me, then I will assume they don’t have respect for my body. I have respect for my body and I want anyone I sleep with to have the same. It’s not logic fail.
    Lindsay phrased it much better than I did. It’s about respecting others and their needs, even if it’s just “I have a cold so I’m not sure if you want to come over.”
    And knowlingly putting someone at risk to put your sexual desires first is immoral to me. That’s not the kind of person that I want to open up to.
    Again, making anything regarding rape/fraud criminal would pose a problem to the courts. I’m referring to ethics in this post, not the legal system.

  71. Miss S
    Miss S July 23, 2010 at 2:19 am |

    Kristen J, I didn’t mean not disclosing makes people a fraud. I meant flat out lying makes people dishonest. I don’t believe that being trans is inherently fradulent.

  72. Miss S
    Miss S July 23, 2010 at 2:23 am |

    Also, I don’t believe that being trans, black, Jewish, etc is similar/the same as having an STD. I just wanted to make that clear in case it wasn’t because I’m really tired and feel like I’m not being as clear as I want to be.

  73. Sonia
    Sonia July 23, 2010 at 3:34 am |

    I think the issue can’t be discussed productively if participants demonstrate the logical leap that, because HIV/AIDS can devastate lives and bodies, that a person who is HIV positive is a walking hazard and therefore ethically forfeits any rights to privacy and respect for the ‘greater good’ of everyone who wants to be afraid of them.

    I don’t think everybody needs to know it, just the putative partner. Would you also be okay with someone with infectious disease working in a premie ward just because asking them to disclose otherwise would infringe on their privacy.

  74. Jesurgislac
    Jesurgislac July 23, 2010 at 3:39 am |

    I believe it’s currently the law that an Israeli cannot marry a Palestinian (or if they do wed, the Palestinian does not get residence or citizenship rights in Israel).

    Dudu is an Israeli Arab, apparently, so that legal distinction wouldn’t apply.

    In that context – in the whole apartheid context of the messed-up state of Israel – I think the parallel is a white woman, angered that she had sex with a black man passing for white, identifying this as rape: or like a cis man, angered that he had sex with a trans woman, identifying this as rape: or, Goddess help me, a gold star lesbian angered that she had sex with a bisexual woman who’d had several past relationships with men, identifying this as rape.

    That last is something I can identify with from my personal experience: the whole “Are you a lesbian who’s only ever had sex with other lesbians?” leads to any number of bisexual woman identifying as lesbians and claiming that they once were heterosexual and “recovered”. If a lesbian has sex with a woman believing her to be a lesbian, and the woman later puts on a Bi Pride badge and goes to march under the Bisexuals United banner at Pride, can/should the lesbian claim the other woman raped her because she didn’t make clear she’s bisexual?

    I don’t think so. I’m not trivialising (i hope) people’s self-identity. But whatever the woman feels about Dudu knowing he’s an Arab not a Jew, she has a right (if he lied to her) to be angry with him: but I can’t see that he raped her, if the worst he did was tell her he was Jewish. (I note that Dudu asserts he never lied to her.)

  75. Natalia
    Natalia July 23, 2010 at 5:24 am |

    I’m with Jill. And Safiya.

  76. Thomas
    Thomas July 23, 2010 at 7:15 am |

    Galling Galla, I said above that I’m against any obligation of disclosure at all: what each of us needs to know about out partners, we are obligated to ask, not assume. That’s my view.

    Also, though perhaps it’s not clear from what I’ve said in this thread, I reject as transmisogynist the radfem position (Michfest lets trans men take the stage while denying trans women the right to be in the audience). I think Janice Raymond is a pox on the planet. I accept that people’s genders are their lived genders, whether binary or nonbinary. I regard trans status as a fact of medical history, and only one of political identification is a particular person so identifies. But I’m not perfect on trans and genderqueer issues; it’s hard to see through all the privilege. So I’m going to reread what you wrote and think though it.

  77. Faith
    Faith July 23, 2010 at 8:25 am |

    “Misrepresentation, ranging from inane puffery or even omission to something more malicious like marital status, is part of courtship. Everyone engages in these behaviors to a certain extent.”

    Uh, no. No we don’t. Some of us actually have enough respect and dignity for ourselves and our sexual partners to tell the truth.

  78. Fat Steve
    Fat Steve July 23, 2010 at 8:59 am |

    The STI thing is a separate issue- personally I think if an STI positive person insists on no protection- then that is where it becomes dangerously unethical.

    The thing about this case is that the charge seems to be…this woman’s a bit racist, so this guy should be required by law to provide a detailed geneaology…doesn’t really wash.

  79. Kristen J.
    Kristen J. July 23, 2010 at 9:17 am |

    Faith,
    Uh, no. No we don’t. Some of us actually have enough respect and dignity for ourselves and our sexual partners to tell the truth.

    Seriously? You’ve never laughed too hard at a joke told by a perspective sexual partner that wasn’t really that funny? Or glossed over some of your emotional baggage on a first date when a potential partner asks you about yourself? You haven’t pretended to be more upbeat on a date than you were actually feeling? Have you emphasized the things you like about yourself over the things you don’t? Have you worn clothes that don’t reflect your style in order to project a different impression?

    All of these things can bee seen as puffery and I’m fairly certain 99.999- percent of us have done at least one of those things at one time or another.

  80. Faith
    Faith July 23, 2010 at 9:28 am |

    “Or glossed over some of your emotional baggage on a first date when a potential partner asks you about yourself? You haven’t pretended to be more upbeat on a date than you were actually feeling? Have you emphasized the things you like about yourself over the things you don’t? Have you worn clothes that don’t reflect your style in order to project a different impression?”

    No. I have not. I am almost pathologically honest. Most people actually have a great deal of difficultly handling me at first because they find my honesty so utterly bizarre. And there is a difference between emphasizing your “better” qualities over your “worse” qualities. There’s also a difference between simply not disclosing something and directly and actively lying about it. I have no objections to people not disclosing certain aspects about themselves unless asked – aside from being STD positive, which, yes, I do believe people are ethically obligated to disclose even if not asked because that is a serious health risk – but actively LYING about something to get into someone’s pants or lives is completely unethical.

  81. Emily
    Emily July 23, 2010 at 9:39 am |

    My biggest problem with this thread is that people seem to have some platonic idea of what “rape” is, and they are comparing various hypothetical fact patterns to their idea of what “rape” is and saying “well, THIS is not rape.” I don’t see how that’s any different from people who look at acquaintence rape and compare it to their idea of “rape” as stranger jump out of the bushes rape and declare acquaintence rape “not rape.” Obtaining sex by means of knowing, affirmative, intentional deception is not forcible rape (it also appears, from the sources cited, not to be what this particular man did). But speaking as if “rape” is an “I know it when I see it – does this fit?” concept is, I think, counterproductive.

    I agree with those who are saying that this particular prosecution seems to have been a racist miscarriage of justice. But to me that is not necessarily a reason to say that situations in which someone obtains sex by knowing, affirmative, intentional deception should not be criminalized. I think that lying to someone in order to get them to have sex with you, knowing that they would not have sex with you if you told them the truth, is at least as wrong if not more wrong than lots of other things that my government makes criminal. And I think that the fact that it is not criminal to do so, when it is criminal to do these other things (trespass, shoplift, drive without a license), means that my government is making a value judgment, saying that lying to someone in order to get them to sleep with you when you know they otherwise wouldn’t is “less bad” than these other crimes.

    A shorter version of this would just be to say that I agree with Thomas.

    As an aside, I think some of my cavalier attitude toward what is criminal comes from working in indigent defense. I know we all commit crimes. I do not have a criminal conviction not because I have never committed a crime but because I have privilege that protects me from being heavily scrutinized and, if detected, from being royally screwed by my government’s criminal justice system.

  82. bytheway whichonespink
    bytheway whichonespink July 23, 2010 at 9:56 am |

    Faith, he didn’t LIE, she just PRESUMED that he was a Jew when she heard his nickname, he never said anything about his ethnicity.

  83. Kristen J.
    Kristen J. July 23, 2010 at 10:03 am |

    Faith,

    We’ll have to agree to disagree then. I think pathological honesty can be unkind and hurtful. People need praise and re-assurance. I don’t find it unethical at all to flatter someone during courtship.

  84. JDP
    JDP July 23, 2010 at 10:08 am |

    It’s funny that we’re ignoring the married part of this equation. In about half a dozen states in the US, the woman could easily be held legally liable for alienation of affection in civil court since she had sex with a married man. Not criminal court, given, but that’s still a legal liability. So in the US, we’d hold the woman accountable for the man’s dishonesty. Take that as you will.

    It should also be pointed out that we’re judging this only based on interviews of the man. The woman’s voice is absent from the news coverage, probably due to confidentiality laws. While I agree that her reaction involves some degree of racism, I can also imagine that it’s not particularly pleasant to feel like your body has been turned into a battleground in a larger war. I don’t know if that’s what the man meant to do, but I think his claim that he was just minding his own business and that the woman was responsible for the entire ordeal is at least a little fishy.

    He also had the option to just, you know, not have sex with her. Men do in fact have agency when it comes to sex. If he felt significantly uncomfortable telling her about important things like marital status in a country where deception with regards to sex does carry criminal penalties, then he could always, you know, say “no thanks.”

    Not necessarily supporting the ruling, but I think the media coverage of this is ignoring a lot about the case and the law involved.

  85. Faith
    Faith July 23, 2010 at 10:21 am |

    “Faith, he didn’t LIE, she just PRESUMED that he was a Jew when she heard his nickname, he never said anything about his ethnicity.”

    I appreciate that is what apparently happened. I wasn’t even talking about the case mentioned in the OP. Some commenters have stated that everyone lies during courtship and have at least implied that some degree of deception is acceptable. I was responding to those statements. If the man in question didn’t actively lie intentionally, then I don’t believe he’s guilty of anything.

  86. Faith
    Faith July 23, 2010 at 10:26 am |

    “”People need praise and re-assurance. I don’t find it unethical at all to flatter someone during courtship.”

    Yes, people need praise and re-assurance. But praising them for something that you don’t actually believe is praiseworthy in order to get them to like you better or have sex with them is lying. Lying and flattering someone when you don’t really believe in what you’re saying can be just as harmful to the person as being honest about what you perceive as their faults.

    I’m not of the belief that these things should be criminalized, although only because I think it would be completely insane trying to prosecute such a case. But I will absolutely object to anyone stating that we should just accept a certain amount of deception during courtship. We shouldn’t. We all have a right to know who we are or are not consenting to sex or relationships with. And if we ask a direct question, we have an obligation to give an honest answer, or simply refuse to answer the question. But, yea, lying to get laid is and always will be unethical. I’m frankly surprised that I’m typing this on a feminist website.

  87. Faith
    Faith July 23, 2010 at 10:29 am |

    “And if we ask a direct question, we have an obligation to give an honest answer, or simply refuse to answer the question. ”

    Obviously that should have read “if we are asked a direct question”

  88. Jeff Kaufman
    Jeff Kaufman July 23, 2010 at 10:30 am |

    I agree with bagelsan@67: simultaneous retroactive co-rape for the win! Or, more specifically, if person A is charged with rape based on some misrepresentation, I wouldn’t be surprised if much of the time they could find some misrepresentation by person B to claim that the rape was just as much in the other direction.

  89. Li
    Li July 23, 2010 at 11:25 am |

    So, the whole “People with STD’s have an obligation to tell their sexual partners” thing is totally icking me out. People with STD’s have an obligation to protect their partners’ health. Hell, ALL people have an obligation to protect their sexual partners’ health. This doesn’t automatically mean disclosure though. Proper safer sex practices will limit the risk of transmitting STDs to effectively zero. Once proper safer sex practices are involved, there’s not really any risk to the other partner’s health that actually needs to be disclosed.

  90. rebekah
    rebekah July 23, 2010 at 11:36 am |

    I have the right to refuse to have sex with someone for any reason whatsoever, regardless of how you personally feel about that. You do not get to police the reasons why I choose not to sleep with someone (even though I too find the idea of someone not wanting to sleep with someone because of their race/religion being different than the potential partner.) She had sex with him under the conditions that he was jewish as well. The man lied about that in order to have sex with her. That is a type of coercion and therefore at least where I live this is justifiably rape. The woman was violated and we need to respect that fact and fight for her, not victim blame and accuse her of claiming false rape which is what it sounds like you are doing jill.

  91. Kristen J.
    Kristen J. July 23, 2010 at 11:54 am |

    Faith,

    The problem I see with your analysis is you are conflating flattery with intentional misreprentation.

    If my SO says I look beautiful even though he knows objectively I am not, that is not unethical behavior. Even if he knows that I would not have sex with him that evening if he said I look pale, haggard and sleep deprived. That sort of deception is not unethical even though it is deception. And the reverse would be cruel.

  92. Bagelsan
    Bagelsan July 23, 2010 at 12:08 pm |

    Jeff @ 110: Yeah, I’m imagining divorces getting waaay uglier, for starters. I wouldn’t want bitter ex-spouses using loss of kid custody, refusal to sell the house, etc. as a basis for a vindictive rape case.

  93. Tomek Kulesza
    Tomek Kulesza July 23, 2010 at 12:09 pm |

    It’s really simple. If you have any serious preferences that are your borders when it comes to whom you have sex with, ask that person about it. Similarly to what Thomas said.

    There is no obligation to disclose your race, football clubs preferences or whether you’re cis or trans. Lying about that, when asked in such situation, yes, it is pretty heavy deception and is clearly wrong (refusing to answer is third case and it’s ok as it allows for informed – if not uncertain – consent). You don’t have obligation to disclose STIs either, if you take precautions. If asked, you obviously should, though – or just say that you’re uncomfortable with the question and let the other person decide.

    Now, how does that translate to practical law, i have no idea – here is where it stops being simple. It does not have and most likely should not be equal to use of coercion, threats or violence – or even exchange of favours by using your position in government, for example.

    And the context of the event in question makes it extremely heavy to judge without reading a lot about it.

  94. Thomas
    Thomas July 23, 2010 at 12:21 pm |

    Since, as I’ve said, I don’t believe in any affirmative disclosure obligations, if what actually happened — I believe this is disputed — was an assumption and not a direct misrepresentation, then the conviction is unjust and should be reversed or nullified. I don’t believe there should be any remedy civil or criminal for a wrong assumption, only for outright misrepresentation.

  95. Alyssa
    Alyssa July 23, 2010 at 12:23 pm |

    @Indigo Jo: Many Palestinians with Israeli citizenship speak Hebrew fluently without an accent. It’s taught in schools and is spoken all around. Furthermore, many Israeli Jews speak Arabic as their first language and speak Hebrew with an accent because they are immigrants from other middle eastern nations. There is really not any definitive way to tell whether someone is a Palestinian or Jewish Israeli.

  96. Faith
    Faith July 23, 2010 at 12:39 pm |

    “Proper safer sex practices will limit the risk of transmitting STDs to effectively zero”

    That is completely untrue. There is nothing that will reduce the risk to zero. Condoms will greatly reduce the risk, surely. But condoms break, they slip off, they can corrode. This is why people have an obligation to tell their potential partners. You do not get to risk other people’s health without properly informing them of the risk.

  97. libdevil
    libdevil July 23, 2010 at 12:51 pm |

    So many ways this is fucked up. I’m just wondering where the lines are on this. Intentional false statements? Deliberately giving a false impression without actually saying anything false? Allowing a false impression to stand, that you didn’t do anything to cause? Accidentally giving a false impression and not even knowing it? Accidental false statements? Failure to disclose some fact that you know or suspect to be germane? Failure to disclose some fact that you have no reason to believe germane? Is insincere flattery a crime if it leads to sex?

  98. hopingforchange
    hopingforchange July 23, 2010 at 1:10 pm |

    Unethical or illegal seems to be the question here. I am not familiar with Israeli laws and I can understand most Americans responding that it may be the former but by no means is it unlawful. I also agree that there seems to be racism (and politics) involved.

    But at the same time, one has to take the reality on the ground into account. As someone from India, I am only too familiar with taboos on sex; the onus of safeguarding honour – personal honour is the family’s honour – lies solely on the woman (along with everything else).

    The Indian Supreme Court recently ruled that a woman can file rape charges against her “lover” if he had sex with her by misleading her into believing he would marry her. If the lover rescinds his “promise,” she has recourse to the courts. While this will send a chill down the spine of many Westerners (and Indians) I think there is a cultural element we may be overlooking.

    No doubt there may be some women who might want to take advantage of this ruling, but there are far too many women who are being oppressed, some even into death (honour killing and suicide) in the name of tradition and culture. Often a woman who has a “boyfriend” (any male friend) is the target of malicious gossip, and will receive no offers for marriage on account of her being “loose.” Her family members have to lower their heads in shame for the rest of their lives.

    In a country where women are “valued” (ha!) only as wives and mothers, marriage is the only option, and many women will try and fulfill this “dream” no matter the cost. Such a ruling just might lead men in general into putting some thought into their own decisions, rather than leaving it all to women. In fact, in this case, such a ruling might force a strongly patriarchal society to realize there is another side too – the woman’s side.

    While I am not sure if the man should be booked for deception or rape, my point is that there cannot be a universal ruling when cultural expectations – in this case, regarding gender – vastly differ.

  99. Sid
    Sid July 23, 2010 at 1:13 pm |

    So in the US, we’d hold the woman accountable for the man’s dishonesty. Take that as you will.

    Only if she knew that he was in fact married, which by accounts she did not as he allegedly deceived her into believing he was a bachelor.

    He also had the option to just, you know, not have sex with her. Men do in fact have agency when it comes to sex. If he felt significantly uncomfortable telling her about important things like marital status in a country where deception with regards to sex does carry criminal penalties, then he could always, you know, say “no thanks.”,

    I’m sure if he had known he could have been charged with rape by deception, he would have.

    What I’m really interested in is those who claim that she has a civil case but take umbrage with a man who has a marriage annulled because he finds out that the woman he slept with wasn’t a virgin.

  100. WestEndGirl
    WestEndGirl July 23, 2010 at 1:17 pm |

    Ok right, the fact is that Israel has legal precedent, brought down originally in cases against Jewish Israelis for obtaining sex by deception which is what this case was tried under (currently under appeal).

    You can like the law or lump it, but the idea that this case is a priori evidence of evil Jewish Israeli racism is assumption based on assumption. Unless we hear from the woman herself, we can only know what the defendant had to say about the deception or no, and obviously he is not going to paint himself in a bad light.

    Personally, I had a similar experience while on kibbutz (still a virgin, still v.inexperienced sexually) that the young man working in the cafe with me, who I knew was an Israeli Arab (which was by the by to me), swore blind to me that he was a nice Jewish boy who was interested in a serious relationship and marriage in order to try to get in my pants.

    The dynamic going on is that, on average, Jewish Israeli or overseas women generally get to put out a lot more and more easily than Arab/Druze/Bedouin Israeli women due to cultural/practical constraints. And given that Arab/Druze/Bedouin men often have sexual urges, they practice deception in order to get some. Since sex by deception is considered unlawful of course this issue is going to come up. I am 99% certain that this case will be overturned on appeal because the deception descriptor catches – quite clearly – things which should remain in the civil courts, if at all as Jill says.

    But all the assumptions people are making here about Jewish Israelis and their innate racism and the idea that this case wouldn’t be prosecuted the other way round? Not on at all. They have a law, the law is an arse, the arsey law got applied to an area of deception where it is unwarranted, it will be overturned. No need to go on at length about Israeli evil. Not to mention the factual innaccuracies littering the comments that cunningly manage to make Israel the worst society in the world. Plus ca change in Feministe though…

  101. Alara Rogers
    Alara Rogers July 23, 2010 at 1:57 pm |

    @rebekah:
    She had sex with him under the conditions that he was jewish as well. The man lied about that in order to have sex with her. That is a type of coercion and therefore at least where I live this is justifiably rape. The woman was violated and we need to respect that fact and fight for her, not victim blame and accuse her of claiming false rape

    Again, if that is rape, then a woman who claims to a man that she is a virgin because he would not enter into a sexual relationship with her otherwise, for the purpose of obtaining a sexual relationship, when she is not in fact a virgin, has just raped the guy. If they get married on the pretense that she’s a virgin, and have repeated sexual encounters, then she’s just raped him lots of times.

    Part of the reason this *cannot* be classified as rape is the whole “bad cases make bad law” thing. We feel that a married man who lied to a woman about his religion in order to get some was an ass, and that she had the right to feel violated. So we say “yeah, that was rape.” But if the law makes a distinction between men and women, such that men can’t be raped the same way, that’s codifying sexism and patriarchal enforced differences into law. The only *fair* way to do it, the only feminist way to do it, would be to say that the law makes no distinction on gender. (Otherwise, remember, you’re *legally codifying* the notion that women are shamed by inappropriate sex and need strong protection from sexual encounters that weren’t culturally accepted.) And as soon as you do that, the woman who told the guy she was falling in love with that she was a virgin because he told her that his religion states he can’t have sex before marriage and his wife has to be a virgin, and she loves him and wants sex with him so she lied and said she was a virgin… now she’s a rapist.

    A law that says “you must disclose to your partner every fact that you are aware of about yourself that could impact their desire to have sex with you, before sex, or else you will be charged with rape” will be used against trans people. It will be used against women who are not virgins, or women who have had more sexual partners than their current partner is comfortable with, or women who weren’t on the pill and said they were, or women who were on the pill and said they weren’t, or women who dye their hair and actually it’s gray, or women whose breasts contain implants, or women who have had their tubes tied, or women who once suffered from domestic violence, or women who were once raped, or women with mental illnesses. It will, in fact, be disproportionately used against women because there are far more things that women are socially shamed for that would impact a man’s willingness to have sex with them (or, at least, have the kind of sex that they were willing to consent to, such as sex in the context of a long term relationship or a marriage). And women who are trying to escape their abusers will be charged with rape because the abuser says “She aborted my child and if I’d known I would have divorced her right then and never had sex with her and since she never told me she was deceiving me and that’s rape!” And the women in question will be convicted of rape much more often than male rapists who actually commit forcible sex on a woman are, because women are not believed, and if it’s her word against his that she *did* tell him the thing he’s saying was a deal breaker, he’ll be taken at his word and she’ll be charged with rape.

    It’s one thing to sit in an ivory tower of “yes means yes” and say, well, yes, if an asshole lies and says he’s not married when he really is and he seduces some poor woman that way, she was totally violated! Definitely rape! But you know what, in the real world, that is not the only way such a law will ever be used. A law that states that concealing information about yourself which would have kept someone from sleeping with you if they’d known, and sleeping with them anyway, is rape, WILL BE USED TO PUNISH SEXUAL WOMEN. And if instead you write the law so it only applies to men who do this to women… congratulations, you just ratified patriarchy while trying to protect women. Good job.

    There is a difference between “asshole behavior”, “harmful behavior”, and “felonious criminal behavior.” I think a *lot* of people who want to call this *legally* rape are not recognizing the distinction. Obviously, a guy who lies to get a woman into bed is an asshole. One can even argue that he has done her material harm. But *rape?* It’s a felony sex crime to lie about, for example, your marital status?

    Given that 99% of all rapists are men, I am really, really not comfortable with redefining rape to include an act that women commit all the damn time. Women lie to get guys into bed (or into long term relationships that will involve getting in bed) as often as men lie to women. So are women special snowflakes who need coddling and protection from brutish men and their nasty, nasty sex, or would a woman lying about her virginity or her religion or the fact that she has kids in order to get a guy into bed *also* be rape? We’re going to declare that rape is a crime both sexes commit against each other in equal numbers? Um… that really does not sound like a good idea to me if you’re trying to *fight* rape.

    Anyone has the right to say “I don’t want to have sex with people who are x, y and z.” Denying people the information they need to make a good decision about sleeping with you is an asshole thing to do. But is being an asshole actually synonymous with being a rapist? Really? is that a useful thing to do with the definition of rape? Is that gonna fight rape culture?

  102. BL1Y
    BL1Y July 23, 2010 at 3:18 pm |

    Jill: This may help clarify the distinction you’re making (and which I agree with): It should be criminal to lie about which person you are, but not criminal to lie about what type of person you are.

    Alara: “Given that 99% of all rapists are men, I am really, really not comfortable with redefining rape to include an act that women commit all the damn time.”

    We should criminalize acts based on their inherent wrongness, not based on the identity of the perpetrators.

  103. Crys T
    Crys T July 23, 2010 at 3:28 pm |

    This case has been bugging me for several days now, as, like many people, I can understand both why people are worried about the consequences of classing this kind of deception-for-sex as rape and why the woman in question feels violated.

    But, apart from that, what is really, really bothering me about all this is the response from the USian/European Lefty community. If this situation had occurred in any other context, at least the femininsts amongst you would be firmly on the side of the woman. Even if you didn’t agree that the violation was severe enough to be classed as rape, you would still be defending her and call out the guy for lying in order to get into her pants. And when he came out said that he actually hadn’t lied to her, you would have engaged in a big group laugh at the patethicness of his lie.

    But because the woman in question is an Israeli Jew, and the man in question is an Arab, all of a sudden she doesn’t rate the same sort of sisterly support you’d give any other woman in her position. All of a sudden, some of you are even making comments that seem sympathetic to the man’s “need” to lie in order to get between her legs (if the tightassed bitch weren’t such a racist, he’d have had free access, dontchaknow?).

    And all of a sudden, because she is an Israeli Jew and he is a Arab man, you all believe him unconditionally when he says that she’s the one lying about what transpired. I cannot see that happening in ANY other context than this one.

    Seriously, what the fuck? You may think this sort of thinking makes you oh-so-progressive, but all it does is reduce the context of the Middle East to a black-and-white cartoon and only serves to perpetuate the hatred and inequalities that you supposedly abhor so much.

  104. JK
    JK July 23, 2010 at 3:31 pm |

    I remember reading some thread on here about trans issues- I couldn’t even tell you what thread- and someone said trans people should have to disclose trans status before sex, because what if the person having sex with them only wants to sleep with cis people? And the answer to that was, if you only want to sleep with cis people, that is on you to find out for yourself and make sure that person is cis before you sleep with them. For me, that was a lightbulb moment.

    I am a vegetarian, and it on me to make sure the food I eat is vegetarian. I ask, to the extent I feel comfortable asking, or I make my own food or buy something I am certain is vegetarian. If someone stuck some pork fat in a dish clearly described as vegetarian- well, that sucks, but if it was an accident, there is not much I can do about it, and there is always- always- some other option I could have eaten- at the vending machine, in my own kitchen, at the restaurant down the street. It is on me to make sure I am eating according to my beliefs, not to everyone else.

  105. john
    john July 23, 2010 at 4:04 pm |

    It should never be illegal to be an asshole.

  106. Safiya Outlines
    Safiya Outlines July 23, 2010 at 4:25 pm |

    What is with the “Oh the poor Israelis, nobody loves them” comments?

    Israel is a state that discriminates against Arabs on every level. Sorry if that doesn’t leave me with much faith in the fair nature of the Israeli legal system.

  107. JDP
    JDP July 23, 2010 at 4:53 pm |

    RE: WestEndGirl:

    The dynamic going on is that, on average, Jewish Israeli or overseas women generally get to put out a lot more and more easily than Arab/Druze/Bedouin Israeli women due to cultural/practical constraints. And given that Arab/Druze/Bedouin men often have sexual urges, they practice deception in order to get some.

    Which is why I said earlier that this is a case of the political battlefield being imposed on the personal. This is a classic Madonna/Whore narrative: this guy wants to have his nice proper conservative Arab wife, but he wants to be able to get some on the side by lying to Jewish girls and taking advantage of secular Israeli society. That is absolutely not to say that this is the case for all Arab men, but it is the case for some, including, apparently, this guy.

    This is not only an issue involving deception. It’s an issue involving larger issues in society. Israeli Arabs and Palestinians have major problems with honor killings, and greatly obstruct any police investigation. There have also been recent reports of sexual violence against western pro-Palestinian activists (Trigger Warning for the link), where there is a sense that Western women must be more sexually available than the local women. That should be offensive to anyone with a conscience.

  108. Jesurgislac
    Jesurgislac July 23, 2010 at 5:01 pm |

    But, apart from that, what is really, really bothering me about all this is the response from the USian/European Lefty community. If this situation had occurred in any other context, at least the femininsts amongst you would be firmly on the side of the woman. Even if you didn’t agree that the violation was severe enough to be classed as rape, you would still be defending her and call out the guy for lying in order to get into her pants. And when he came out said that he actually hadn’t lied to her, you would have engaged in a big group laugh at the patethicness of his lie.

    It seems kind of awful to laugh at someone for being a social inferior in an apartheid system who may have lied about being part of the superior class.

    Even when he lied about being part of the superior class because if he’s been honest about being one of the inferiors, a woman of the superior class would not have consented to sex with him.

    There is more than one set of privileges going on here.

    There’s gender privilege – no one’s calling Dudu a slut or trying to sex-shame him.

    There’s race privilege – as Gideon Levy noted, the other way round, an Arab woman charging a Jewish man with rape because he lied to her about being an Arab, would have got no consideration in the Israeli courts.

    Context matters, Crys.

    In another situation, we’d be all for a woman being offended and angry at a bratty teenager wolf-whistling at her. But in context, it’s impossible not to see that however bratty the teenager was, he didn’t deserve that – and saying so doesn’t mean Carolyn Bryant didn’t rate the same sort of sisterly support. Racist bigotry is not how I express sisterly support, thank you.

  109. Miss S
    Miss S July 23, 2010 at 5:02 pm |

    We already expect that people look out for the ‘greater good’ or the well-being of others. My mom works at a nursing home. She was required to prove which immunizations she had and was required to get any that she didn’t. This is for not only her safety, but for the residents as well.
    When the swine flu was going around, we were required to not attend class if we had any flu like symptoms. Those who lived on campus were required to visit the health center immediately and were removed from the residence halls immediately if the virus was found.
    Most people attempt preventative measures as opposed to reactive ones when it comes to infections and diseases.

    And I agree with Faith- lying to get in bed with someone is unethical. It shows a lack of respect and if someone is willing to lie to get in bed with me –about his income, relationship status, job, whatever- that isn’t someone I want to share a bed with. I can’t believe that anyone thinks that flat out lying is acceptable if it gets you in bed with someone. Frankly, that’s a disgusting sentiment. Sex isn’t something that you try to get by any means necessary. If someone doesn’t want to sleep with you, move on to the next one.

  110. alawyer
    alawyer July 23, 2010 at 5:02 pm |

    I think arguing about the application of the “rape” label isn’t very useful here. The real question is whether obtaining “consent” by deception should be illegal, and, if so, when? The question of labels (“rape” vs. “fraud in the inducement”) seems decidedly secondary.

    I think this is actually a hard question. I think most of us want to say that pretending to be a specific other person should be actionable and that “of course I’ll respect you in the morning” shouldn’t be, but how do you draw the line in the middle? I don’t know.

    This particular case is unusually problematic because it seems the guy never actually said he was Jewish; she just assumed he was Jewish based on the nickname he gave her. Failure to disclose is a different world from active deception.

  111. Miss S
    Miss S July 23, 2010 at 5:08 pm |

    Also, I agree with JK. Most people know what’s important for them to find out before sex. It is up to individuals to decide what they need to know and ask. It is also up to the other person to be honest. Sexual relationships should not stem from blatant dishonesty.

    For the case in the OP, if he didn’t actually say he was Jewish and she assumed based on his nickname, I’m not even sure how this is a case. It’s like assuming a guy is wealthy based on the car he was driving and then finding out it was his friend’s car.

    Which is very different then someone who resembles my boyfriend coming into my room and having sex with me while pretending to be my boyfriend and it’s not even him. That is literally pretending to be someone else.

    And I think cases like the welfare one happen far more often then we know. Using power to get sex is awfully common and working class or poor women have little power.

  112. Sonia
    Sonia July 23, 2010 at 5:09 pm |

    Only if she knew that he was in fact married, which by accounts she did not as he allegedly deceived her into believing he was a bachelor.

    I don’t know if Israel allows polygamy but Islamically he is allowed 4 wives and Jewish women are accepted so he could still be a bachelor to 3 more women.

  113. jc
    jc July 23, 2010 at 5:21 pm |

    it seems like you don’t privilege race as being as important a part of your identity, as, say, being someone’s brother.

    fair enough; i make the same value judgment myself. but let’s be honest-that’s what it is, a value judgment. we think the fact that someone is a different race than they say they are is not as important as being someone’s brother instead of that person themself. but other people can make the value judgment that race is just as important as the fact that the dude is your husband’s bro instead of your husband himself.

    you’re calling it “not rape” based on the fact that you don’t think race is as important. but this woman clearly does.

    now, it’s a legit question as to which preferences the law should enshrine as rape if you lie about them. i think it’s fair that the law says being a different race, or a different socio-economic status than you pretend to be is not as important as being a dude’s brother and pretending to be the dude. but these are all value judgment questions.

  114. alawyer
    alawyer July 23, 2010 at 5:24 pm |

    Which is very different then someone who resembles my boyfriend coming into my room and having sex with me while pretending to be my boyfriend and it’s not even him. That is literally pretending to be someone else.

    Sure, but what if someone who looks like your boyfriend comes in the room and you assume he’s your boyfriend because he looks like him, and you have sex with him?

  115. Yaniv Reich
    Yaniv Reich July 23, 2010 at 5:27 pm |

    Reports suggest that Sabbar Kashur didn’t even claim to be a Jew, but rather just used a Hebrew-sounding nickname (“Dudu”), which he had used when working in Israel for decades. Everyone called him “Dudu”, even his Arab wife.

    This additional circumstance makes, in my view, the case regarding “deception” to be even more preposterous than the notion that he “impersonated” a Jew.

  116. JDP
    JDP July 23, 2010 at 6:04 pm |

    RE: Jill:

    Point being, sexism is not specific to any society or set of beliefs. A lot of things that are offensive to anyone with a conscience also happen among Israeli Jews. (And Americans. And Europeans. And etc etc etc).

    I agree.

    You seem to be the one attaching a bunch of your own assumptions and stereotypes to a situation we know very little about.

    That goes both ways, though. We know very little about what went on in that courtroom. We have a snippet of the decision and we have public statements by the man involved.

    I think the post was pretty clear that on a basic legal level, regardless of who the two parties are, lying about your ethnicity should not be grounds for a rape conviction.

    Not disagreeing with that, either. I said above that I don’t think this should be a criminal case, and I don’t know enough about the case to even weigh in on whether this would even qualify as fraud. I have also stated that there’s no way that there isn’t an issue of racism involved.

    Now you’re tying it to honor killings? Come on.

    No, I was pointing out that secular and religious communities tend to have very significant differences in approaches to sex and sexual ethics, and where these communities come into contact, there will be plenty of situations where members of the religious communities will treat secular society as a place to play around, but they’ll continue to contribute to a restrictive society in their own communities. This happens in the US all the time. See: every Republican sex scandal.

    I’m not saying that the ruling is necessarily right, and I’m not saying that what happened was rape. Neither is really my place to judge. What I’m saying is that I can see why the woman involved could feel violated enough by the incident to file charges even if she wasn’t racist.

  117. Alara Rogers
    Alara Rogers July 23, 2010 at 6:15 pm |

    I think it’s absurd to say that the crime of impersonating a completely different, but real, human being who is known to the person you are doing the impersonation with is even vaguely similar to the crime of lying about some aspect of yourself.

    I mean. If you lie and say your name is Dave when it’s Steve, you’re lying about who you are, too. But if you are specifically PRETENDING TO BE DAVE, a specific Dave who is known to the person you are making this claim to, then you are appropriating Dave’s identity. You are actually making use of *Dave’s* identity to get what you want. It’s not that you’re lying about who you are; if you said you were John Jacob Jingleheimer Smith, and there is no real John Jacob Jingleheimer Smith whose identity you’re taking, and you have sex under that pretense… that is *still* not the same thing as going to Dave’s wife and pretending that you are Dave.

    People are seeing this from the perspective of “lie about your identity”, so lying and claiming you’re Jewish when you’re not is a lie about your identity, and lying and claiming you’re Susan’s husband when you’re in bed with Susan is a lie about your identity, and either way, same lie. But that’s not *true*. Lying and claiming to have a different fictional identity than the one you really do have just makes you a liar. Lying and claiming to have someone else’s *real* identity means you get to take everything that belongs to them. And what “belongs” to them is the bonds of trust and love and connection that they have earned with other people. And you are using those bonds, which you have appropriated, to do harm to the people who have granted them to the person whose identity you stole.

    I don’t want to make it sound like I think the crime of pretending to be your brother to seduce your brother’s wife is a crime *against* your brother. I mean, it is, but it’s also against your brother’s wife. You have violated her, because you took a *specific person’s* identity, a specific person that she trusts and loves, and you made use of that trust and love that she had never granted to *you* to get something from her she wouldn’t have given *you*.

    If you have sex with a guy you don’t know really well or a guy you don’t completely and totally trust, he could be lying about *anything*, because humans are dickheads and he’s human. You have to consider that possibility when you go into a relationship. And the same is true of men. And the same is true whether you’re gay or straight, cis or trans. If you’re gonna have sex with a human, and you don’t know and trust them completely, they could be lying, because humans are assholes that way. Or they could be lying because there’s something they’re concealing because people would hate them if they revealed it. This is part of the deal, when you have sex, or a relationship, with *anyone*. You knew it was a human being when you had sex with them, and you knew humans lie, and therefore you knew there was a chance they were lying.

    This is not the same thing as having sex with someone you know and trust, except they’re not that person at all, they’re someone else who’s taken their identity! How the hell can *anyone* think that lying about your race, your name, your birth gender, your marital status, your religion, or *any* aspect of your personal identity is equal to stealing someone else’s identity and wrapping yourself in it in order to take advantage of the people who love that person? I don’t care how important it is to you that someone be the race they say they are or have been born with the genitals you think they should have been! I don’t even care how important it is to you that they don’t have an STD, or that they’re not secretly a serial killer! Lying about an aspect of your identity, or concealing it, isn’t even remotely close to stealing someone else’s identity! There is no sense in which “Oh, I’m Jewish” when I’m Arab is morally equivalent to “Oh, I’m your husband and I love you, let’s get it on” when you aren’t!

    Lying about yourself is an asshole thing to do. But lots of people do it. And rape, specifically, is a crime of violence and violation that has been historically and is currently perpetrated primarily by men against women, children and other men as a means of exerting dominance and power through sexual means. Occasionally, it is perpetrated by women, for pretty much the same reasons. Rape indicates that the rapist has zero respect for the desires and personhood of the victim, and perceives the victim as an object to be taken advantage of.

    Lying about yourself, however, is on the spectrum of “persuasion”, not the spectrum of “coercion.” It does not indicate a complete lack of respect for the other; it often indicates a strong desire to be likable to the other person (so you hide or lie about what you think the other person wouldn’t like.) It is committed by both sexes, against both sexes, in sexual and non-sexual contexts. It is probably *the* most prevalent asshole behavior humans engage in with people they know or want to know. People lie to their parents, they lie to their children, they lie to their lovers, they lie to their friends, there is absolutely no one a liar won’t lie to and in fact the stronger the emotional bond, often the greater the urge is to lie to make yourself look better to that person. Lying and saying you’re Jewish, or unmarried, or a virgin, or 28 when you’re 35, is similar to wearing makeup, getting breast implants, covering your bald head with a toupee, or anything else people do to make themselves more attractive. It is *not rape* and I can’t believe that people are seriously making the argument that telling a woman “no, you don’t get to charge a man with the crime of *rape* for lying to you about his religion” is rape apologism and is somehow anti-Semitic because we’d normally stand in solidarity behind such a woman. Yeah, you have the right to not have sex with anyone you don’t want to have sex with, but if you consented to sex with someone you didn’t know very well, then you knew you didn’t know them very well and there could be all kinds of deal-breakers in their history. They weren’t exploiting your existing relationship with a different person by taking that person’s identity; they were just lying about who *they* are. It’s a shitty thing to do, but it’s not *rape*. And I do not think that a behavior that the *majority* of human beings engage in with every single person they care about at some point turns into rape if they do it in the context of sex.

  118. Crys T
    Crys T July 23, 2010 at 6:21 pm |

    Safiyah wrote: “What is with the “Oh the poor Israelis, nobody loves them” comments?”

    I in no way mean that. I in no way mean that Israel should be excused from any of the atrocities it commits. I am only pointing out that USian lefties are grossly hypocritical in their feminism, as one of their tenets is that we should always give the woman in a case such as this one the benefit of the doubt, but they are choosing not to just because of what it says on her passport.

    When they have this reaction, they only give ammunition to those who support Israel’s racist actions by proving one of the biggest criticisms: they are holding anything related to Israel and/or Israelis to a different standard than they would another country. In no other context would any feminist here automatically take the word of a man over a woman in a sexual assault case. But because it’s Israel, and the guy accused is Arab, they’re so damn scared of looking uncool, or racist themselves, some of them have.

    How does that sort of attitude help anything? Especially since the “sensitivity” towards Arab men tends to evaporate in USian feminist circles pretty damned quickly once the word “Israel” is no longer in the mix.

    I know it’s unfashionable right now, but I can’t help but think that if USian/European Lefties were truly concerned about improving things in the Middle East, they’d be more interested in actually *humanising* all sides of the conflict, rather than thinking in cartoon images of The Bad Guys and The Good Guys.

    And for god’s sake, they could also take some cultural responsibility for the whole mess in the first place, seeing as the state of Israel wouldn’t have been established in the first place without the meddling of most of the powerful world states. Sometimes, listening to USian and British lefties blathering on, I think that they honestly believe that Israel was established by the Jews mounting an army and invading completely on their own initiative.

    Israel would not exist if not for Western imposition and Israel could not continue to get away with its racist practices if it didn’t still receive support from the US, UK and other Western powers today. So, enough with the hypocrisy about what “those people” are doing.

    Jesugislac wrote: “It seems kind of awful to laugh at someone for being a social inferior in an apartheid system who may have lied about being part of the superior class.”

    In order to deliberately fool a woman into having sex with him? In any other case, the man’s being a member of an oppressed class would not be enough to get feminists to actually defend and/or minimise his actions.

    “Even when he lied about being part of the superior class because if he’s been honest about being one of the inferiors, a woman of the superior class would not have consented to sex with him.”

    The above is exactly the sort of apologist crap that’s bother me. NO ONE IS ENTITLED TO SEX. EVER.

    And why the fuck would you WANT to have sex with someone you believe considers you inferior? The guy is a sleaze.

    “There’s race privilege – as Gideon Levy noted, the other way round, an Arab woman charging a Jewish man with rape because he lied to her about being an Arab, would have got no consideration in the Israeli courts.”

    So, because the Israeli justice system is racist, feminists in other countries have to excuse sexually abusive behaviour when it’s committed by the member of an oppressed class? I must have missed the bit in feminist theory where it says that all of us with social privilege of any sort have to give up the right to free, informed consent in the interests of social progress when we’re abused by members of groups with less social privilege.

    And also: because Arab women in Israel who are raped are often denied justice, it’s a-ok to deny Israeli Jewish women who are raped justice too? What the fuck kind of moral code is that, and on what planet is it remotely feminist?

    “Context matters, Crys.”

    No shit. And the context is that in the Fauxgressive Leftysphere, a woman who’s been abused gives up any right to compassion if her nationality happens to be Israeli and her ethnicity Jewish. Because Israel is of course Worse Than Satan to all of you, which is hilarious considering most of you here are USian–you know: the USA, the country that is responsible for exponentially more human misery than Israel ever could be. (And is in fact the major reason that Israel can get away with the atrocities it commits) Yet I’m supposed to have all sorts of compassion and solidarity with a USian woman, but consider an Israeli woman as an automatic enemy.

    So, how would any of you feel if you were tricked into sex by a man who was a member of a socially marginalised group, and my response was to come at you with a list of USian atrocities, implying that because of them, you kind of deserved what you’d got?

    This is a story about a man who lied to get laid. And it’s only the nationality and ethnicity of the woman involved that is getting him sympathy from certain quarters here. That’s the damn context.

    And I’m horrified at the ease with which a number of people who claim to be feminists are turning this woman into nothing more than a cunt to be used as the space to play out some fauxgressive sociopolitical drama.

  119. Sid
    Sid July 23, 2010 at 6:22 pm |

    No, I was pointing out that secular and religious communities tend to have very significant differences in approaches to sex and sexual ethics, and where these communities come into contact, there will be plenty of situations where members of the religious communities will treat secular society as a place to play around, but they’ll continue to contribute to a restrictive society in their own communities. This happens in the US all the time. See: every Republican sex scandal.

    But its irrelevant, we don’t even know if the guy was Muslim or not and even if so, what his level of practice is, tying this to any discussion of interaction of religion w. public sphere is non-sequitur.

    Also you’re continual raising of misogynist and other humans rights issues among Arab/Muslim populations everytime there is a post discussing criticism of anything Israel is getting tired.

  120. KL
    KL July 23, 2010 at 6:24 pm |

    I would really appreciate hearing from the people who believe that what he did was indeed rape speak to the push back about if the roles were reversed. So if a man lying (though it has already pointed out, she may have assumed him to be Jewish without him actually saying he was) about being Jewish to have sex with her has raped her, is a woman lying about being a virgin to a man who only wants to be with a virgin, has she raped him? Its the same thing, both can be deeply held religious beliefs, just different liars so to speak in each scenario.

    Of course, it doesn’t mean he isnt an asshole or that she doesnt have a right to be upset. But as Jill has said several times now, does that mean he should be criminally charged?

  121. Kristen J.
    Kristen J. July 23, 2010 at 6:24 pm |

    What I’m saying is that I can see why the woman involved could feel violated enough by the incident to file charges even if she wasn’t racist.

    IF the only reason she wouldn’t have had sex with him is because he wasn’t a Jew, if his race is the only factor in her determination not to have sex with him, that’s racist. She feels violated because she’s a racist.

  122. Nathan Hansen
    Nathan Hansen July 23, 2010 at 6:47 pm |

    I agree that what the boyfriend and the Muslim did was gross, but I think neither were rape. Both were a form of sexual assault, but rape is considered worse than murder. I think they both should spend a couple of years AT LEAST in prison, but not for rape. And I don’t think they should be considered sexual offenders unless they have a history of doing this type of predation.

  123. BL1Y
    BL1Y July 23, 2010 at 8:01 pm |

    alawyer: You draw the line between lying about which person you are, and lying about what type of person you are. “I’m your husband” is lying about who you are. “I’m a Jew, and I’ll still respect you in the morning,” is a lie about what type of person you are. Although, I did one time tell a girl I was Jon Bon Jovi. I don’t think that should be illegal. I’m pretty sure she knew I was not him.

    I’d also be fine criminalizing (as something other than rape) lies about:
    (1) STD status. Not a duty to speak up, but I think you should be in trouble if you lie about being clean when you know, or should know, that you’re not.
    (2) Present contraception use. Lying about being on the pill at the moment, or lying about having put on a condom (if the lights are out, you never know).
    (3) Lying about being sterile or infertile.

    Basically, lies that both (a) are aimed at inducing consent when consent would otherwise be withheld, AND (b) implicate the health or legal rights of the other person. I don’t think rape is the right offense, but maybe battery.

  124. Sheelzebub
    Sheelzebub July 23, 2010 at 9:19 pm |

    Both were a form of sexual assault, but rape is considered worse than murder.

    No. It’s not, actually.

    As far as this case goes, the story pointed out that these cases were often prosecuted as fraud. As far as the specifics of the case, it sounds. . .odd. They just met and 15 minutes later decided to go knock boots in a nearby office building? Really? Really?? I have a feeling that there are some missing pieces to this story.

  125. April
    April July 23, 2010 at 9:29 pm |

    I wasn’t even going to touch this one, but I do have to ask (and I apologize, I’ve only read the first 50 or so comments and don’t want to spend another 30 minutes reading each and every one after that): What’s with all the “racism” claims against the Israeli Jewish woman? Now, I’m not Jewish, nor do I live in Israel or even understand much that’s going on there, so I could be way off (although I don’t think I am), but how is a practicing Jew wanting to be in a relationship only with other practicing Jews racist? I never thought that Jewish people who followed the rule that they only marry other Jews were doing so because of race, but because of religion. A friend’s sister, who is of Chinese descent, married a white guy who is a practicing Catholic. His Catholic upbringing dictated that he only marry another Catholic. She wanted to marry him, so she converted. Whether or not she was a “true believer” or whatever, the fact that she went through the process of converting to Catholicism and began practicing Catholicism made their marriage “okay” in the eyes of the church and God and his parents or whomever was in charge. Now, while “Catholic” isn’t an ethnicity like “Jewish” can be, or like “Arab” is, it is my understanding that this rule applies only to practiced religion, and not to ethnic background. And, as has already been mentioned, he was an Arab, and obviously an Arab, and she believed him when he said he was Jewish. So… Israeli/Palestinian conflict aside (and I think the ruling was pretty extreme and unfair and largely due to the context), I really don’t think that her desire to only marry another Jew was based on racism at all, but instead on her religious beliefs, which I also understand to not be based on racism.

  126. April
    April July 23, 2010 at 9:35 pm |

    I don’t know why I said “Jewish” can be an ethnicity. Obviously it is. Sorry about that. I was just trying to specify the difference between being of Jewish ethnicity and Jewish by religious beliefs, since there are obviously non-practicing, non-believing Jews, and Jews of other faith backgrounds.

  127. ACS
    ACS July 23, 2010 at 10:20 pm |

    As far as this case goes, the story pointed out that these cases were often prosecuted as fraud. As far as the specifics of the case, it sounds. . .odd. They just met and 15 minutes later decided to go knock boots in a nearby office building? Really? Really?? I have a feeling that there are some missing pieces to this story.

    The case was originally prosecuted as a forcible rape case. The victim recanted and admitted to lying, claiming (on the stand) that the sex was consensual. She said she claimed it was rape because of the social stigma of a Jewish woman having sex with an Arab man. The prosecution took the same testimony and changed the theory of the case: the rape was by deception.

    Which is how we end up where we are now.

  128. piny
    piny July 23, 2010 at 10:21 pm |

    And why the fuck would you WANT to have sex with someone you believe considers you inferior? The guy is a sleaze.

    Oh, that’s just fucking brilliant. Your willingness to put up with someone else’s bigotry makes you a bad person. That’s not remotely unfair to minority groups who have, after all, to live with bigotry every minute of their lives.

    Who was calling whom fauxgressive again?

    So, how would any of you feel if you were tricked into sex by a man who was a member of a socially marginalised group, and my response was to come at you with a list of USian atrocities, implying that because of them, you kind of deserved what you’d got?

    You’re conflating specific racist preferences with a nation’s racist history. If a racist white woman freaked out because an African-American man failed to warn her that she was about to have casual sex with someone who didn’t fit her Aryan predilections…yeah, you’re damn right I wouldn’t have any sympathy for her. I resent the assumption that a bigot can live free of the people they hate, especially in a pluralistic society, and I resent the idea that difference is something that must be carefully managed by the people who possess it. I think it’s extremely fucked up that this man is simultaneously being ordered to acknowledge that his ethnicity is bad and dangerous and punished for aspirant passing. This is a racist double bind–and it’s the same racist double bind we in the US have imposed on any number of minority groups, our of our own pathological disgust.

  129. GallingGalla
    GallingGalla July 23, 2010 at 10:26 pm |

    And all of a sudden, because she is an Israeli Jew and he is a Arab man, you all believe him unconditionally when he says that she’s the one lying about what transpired. I cannot see that happening in ANY other context than this one.

    What the hell, Crys T?

    first of all, it’s pretty clear that she ASSUMED that he was Jewish, not that he up-and-lied about it.

    Second and more importantly, no, I don’t believe him unconditionally. If he did indeed lie, he’s an asshole.

    What I believe uncontitionally is that Israeli society is profoundly racist, so that the consequences for an Arab person lying are far more draconian than the consequences for a Jewish person lying IN THE SAME EXACT WAY. A Jew lies – they might be ostracised – or they might be clapped on the back for getting into the pants of an Arab woman. An Arab lies – he’s convicted of rape and sentenced to 18 months in prison. THAT IS RACISM IN ACTION!!

  130. JDP
    JDP July 23, 2010 at 11:13 pm |

    Re: Kristin J.:

    IF the only reason she wouldn’t have had sex with him is because he wasn’t a Jew, if his race is the only factor in her determination not to have sex with him, that’s racist. She feels violated because she’s a racist.

    Or, you know, she feels violated because a guy targeted her because of her ethnicity based on a perception that girls of her ethnic group are easy, and then lied his way into her pants, then turned around and said “haha fooled you.”

    But hey, the guy couldn’t possibly be a racist and a sexist.

  131. JDP
    JDP July 23, 2010 at 11:24 pm |

    Re: Kristin J.:

    IF the only reason she wouldn’t have had sex with him is because he wasn’t a Jew, if his race is the only factor in her determination not to have sex with him, that’s racist. She feels violated because she’s a racist.

    Or, you know, she feels violated because a guy targeted her because of her ethnicity based on a perception that girls of her ethnic group are easy, and then lied his way into her pants, then turned around and said “haha fooled you.”

    But hey, the guy couldn’t possibly be a racist and a sexist.

  132. Miss S
    Miss S July 24, 2010 at 12:47 am |

    Alawyer: Good point. If someone looks like my boyfriend and I assume it’s him and sleep with him, then is it fraud? Especially if he made no indication that he was my boyfriend.

    Basically, lies that both (a) are aimed at inducing consent when consent would otherwise be withheld, AND (b) implicate the health or legal rights of the other person.”
    Exactly. RD: I am far more concerned about the health and safety of consenting sexual partners than the feelings of rejection someone might face by disclosing status. Some of you think that being dishonest because you consider the risk small are trying to rationalize making a decision for someone else’s body. It should be up to the other partner to decide if it’s a risk they want to take. Like the flu, and TB, STD’s are something that people try to avoid because we care about preventative health. Apparently, you believe that some people have the right to judge risk and make decisions for other people’s bodies. Which is weird, because I thought that this was a progressive board.
    I believe that people should have the right to make choices about their bodies with all of the information available. What if a doctor told a woman she needs a hysterectomy for a medical condition even though the doctor knows that birth control could be just as effective? If she chooses to get the hysterectomy, she consented without full information because someone else decided to assess risk and make decisions for her.

  133. Miss S
    Miss S July 24, 2010 at 12:48 am |

    “I resent the assumption that a bigot can live free of the people they hate”
    Except that ‘living free’ is not the same as ‘not having sex with.’ I know guys who are anti-choice. I don’t live free of them but I certainly don’t want to sleep with them. (Although I’m not sure about the story in the OP b/c it sounds like she made an assumption rather than he lied). I’m just saying that living next door to and sleeping with is not the same. No one is entitled to have sex with someone, whether they are marginalized or not.

  134. Lisa Harney
    Lisa Harney July 24, 2010 at 12:49 am |

    The discussion on this post is kind of weirding me out. I’m loving GallingGalla, and others who are arguing against mandatory disclosure. But the people who are arguing that absolute “honesty” should be required, as if there’s an objective measure of honesty, is kind of disturbing.

    I’m looking at how this kind of expectation (especially enshrined legally) can and would affect cis and trans women both, and I’m just not seeing the benefits of “rape by deception” as a category.

    I also don’t see how anyone can compare a man posing as another man to have sex with the latter man’s wife to anyone not revealing everything about hirself before having sex.

    Also, if we do go down that road, can I take cis people to court for not disclosing their transphobia before sex?

  135. RD
    RD July 24, 2010 at 1:01 am |

    OH SHE “RECANTED” SO SHE WAS DEFINITELY LYING RITE GUYZ???!!!!???!!

  136. RD
    RD July 24, 2010 at 1:02 am |

    That is a fucking disgusting attitude.

  137. RD
    RD July 24, 2010 at 1:08 am |

    Yeah things like trans status, hiv status, are similar in a lot of ways to Jill’s example of a rape victim not disclosing. Answering “yes” to a direct question can be just as dangerous for a person too. People need to get beyond their fear of hiv (and trans people) enough to have some empathy here.

  138. Li
    Li July 24, 2010 at 1:51 am |

    BL1Y: Using “clean” to describe someone without STDs is stigmatising and fucking gross. Please stop it.

    Also: Likelihood of facing stigma, forced outing or other bullshit as a result of disclosing STD status to a sexual partner = fairly fucking high.

    Likelihood of transmitting HIV when practicing safer sex = so small as to be academic rather than actual.

    I’m not sure what your exposure to sexual health education is, but condoms are really fucking effective at preventing the transmission of HIV when they’re used properly.

    Once risk is eliminated, there just isn’t any reason for having to disclose sexual health status. Like: would you expect a partner to tell you that they had HIV if they were only interested in mutual masturbation?

    Now, clearly there are different STDs with different ways of transmitting, so clearly there are different circumstances for each of them. But the actual risk rates of transmitting those STI aren’t subjective things.

  139. Miss S
    Miss S July 24, 2010 at 1:58 am |

    It’s weirding me out that being honest with sexual partners is up for debate on a so-called feminist board. It’s also weird that
    - some people honestly believe that making decisions about someone else’s body/health for your own benefit is acceptable.
    - some people seem to think they are entitled to sex. If you don’t think someone would sleep with you if you told them the truth about something that they asked you, it’s fucked up to sleep with them. Move on to someone else. You don’t deserve sex with anyone just because you want it.
    - withholding information when asked to gain sexual consent is okay with anyone who believes in true consent. Women and men are not objects here for your personal pleasure.
    -assessing risk should be left only up to the person with full information
    - people that might face rejection are encouraged to lie for sex.
    - someone’s feelings are more important than someone’s health and well being. STD’s can cause infertility and death. My friend is doing clinical trials at an HIv/AIDS clinic and there is just no reason to knowingly place people at risk for the kinds of things she sees there without their knowledge.

    Would you want someone coming over to visit your newborn baby without informing you that they had the flu? What if they were worried you would say no? Does it make it okay to put your baby at risk so they could do what they wanted?

    What if a guy told me he used a condom and it was dark and I couldn’t see and I got pregnant? And he told me that he didn’t like condoms but knew I wouldn’t have sex without one? Would you just shrug and say “well that’s human nature” or “well to be fair, the risk of you getting pregnant was small?” Or would you say it’s fucked up that he lied to get my consent? I would say that consenting to protected sex is not the same as consenting to non protected sex, especially if I made clear that I would withhold consent if he didn’t use protection. Just like consenting to one act is not consenting to them all. And consenting to one person is not consenting to someone else.

    Some of you have absolutely no regard for the people around you as long as you’re getting what you want. This is so NOT progressive. This is sick.

  140. Kristen J.
    Kristen J. July 24, 2010 at 3:04 am |

    JDP,

    His racism and misogyny doesn’t mitigate her racism. Again, if you find someone attractive and are perfectly willing to have sex with but refuse to solely because they are of a specific race…that’s racist. She didn’t argue that he was guilty of rape because he was generally a lying shitbag, she argued that he was guilty of rape because he lied about (or failed to disclose) his race. His race was what she objected to, not any general asshattery.

  141. Jesurgislac
    Jesurgislac July 24, 2010 at 3:10 am |

    Sheel: As far as the specifics of the case, it sounds. . .odd. They just met and 15 minutes later decided to go knock boots in a nearby office building? Really? Really?? I have a feeling that there are some missing pieces to this story.

    Yeah, fair point.

    Crys: I am only pointing out that USian lefties are grossly hypocritical in their feminism, as one of their tenets is that we should always give the woman in a case such as this one the benefit of the doubt, but they are choosing not to just because of what it says on her passport.

    What benefit of the doubt are we supposed to give her?

    If we take her story at face value, and he did in fact lie about being Jewish & unmarried in order to get her to have sex with him, but the sex was consensual – she found him attractive, she wanted to have sex with him, but she wouldn’t have agreed to have sex with a married man and she wouldn’t have agreed to have sex with a non-Jew – then I think he’s a sleazeball and what he did was scummy.

    But it’s not rape.

    What it is, if it’s a crime, is a crime based on the idea that a woman’s sex is of value and she doesn’t “give it away for free” – for a woman, giving or withholding sex is the doorway to marriage: if an unmarried woman consents to have sex the only acceptable reason is because she’s decided to get married to the man she’s consented to have sex with. In this scenario, a man who presents himself as acceptable marriage material and convinces the woman that he wants to marry her if she’ll have sex with him, is committing theft of her sex – obtaining sex by fraud. In this scenario, having lost something of value to someone who obtained it fraudulently, the woman is entitled to compensation. (This is what the idea that if the man breaks the engagement, the woman’s entitled to keep the ring/other gifts, is based on.)

    A woman who has been lied to, to convince her to go to bed with a man she’s attracted to, has a right to feel cheated and used. I just don’t see that it’s rape.

  142. piny
    piny July 24, 2010 at 3:28 am |

    Except that ‘living free’ is not the same as ‘not having sex with.’ I know guys who are anti-choice. I don’t live free of them but I certainly don’t want to sleep with them. (Although I’m not sure about the story in the OP b/c it sounds like she made an assumption rather than he lied). I’m just saying that living next door to and sleeping with is not the same. No one is entitled to have sex with someone, whether they are marginalized or not.

    “Entitled to have sex with,” is a red herring in this discussion. He didn’t force sex on her. She was attracted to him and wanted to sleep with him, so she did.

    This woman didn’t meet a Jewish man. She didn’t meet an Arab man, not on the terms of the encounter. She met a man who failed to fit her preconceptions about what Arab-not-Jewish men are like. She was attracted to him not because he was Jewish and not Arab, but because he seemed Jewish according to her prejudices. She consented to have sex with this man who seemed like he wasn’t a member of the hated minority.

    The assumption and the lie are inseparable. She was deceived because she subscribed to a set of ideas that are themselves false. She wants the law to step in and protect her from a pluralistic reality–to punish this man for failing to fit within a racist conception of the world, and a racist conception of himself.

    That’s the other problem with bigotry and the ideas associated with any bigoted insistence on purity. They’re not only offensive. They’re categorically false and irrational. They force members of the minority to support ideas that are untrue, and penalize them for failing to fit into an unfair and harmful stereotype. Deception in this context includes any attempt to resist segregation or marginalization: going to places where those people don’t go, wearing clothes those people don’t wear, doing things those people don’t do, speaking languages those people don’t speak, using names those people don’t use.

  143. Jesurgislac
    Jesurgislac July 24, 2010 at 4:18 am |

    Kirsten: She didn’t argue that he was guilty of rape because he was generally a lying shitbag, she argued that he was guilty of rape because he lied about (or failed to disclose) his race. His race was what she objected to, not any general asshattery.

    To be fair to her: As Sheelzebub noted, there may well be more to the story than we’re hearing.

    If he raped her – not by “deception”, but if in this encounter she said “No” and he went ahead and had sex anyway – and then she found the only way any one in the justice system would listen to her calling it rape, if she said “He turned out to be an Arab, he lied and claimed to be a Jew”?

    I really don’t think we know enough of her side of the story to lay blame on her for being racist. We can definitely say that the Israeli justice system is racist.

  144. Sonia
    Sonia July 24, 2010 at 6:17 am |

    It is very interesting that I’ve never ever seen a man convicted of rape being defended so passionately and every word of his lawyer believed on a feminist board over the woman’s. I wonder if this is how other prominent rape cases will also be discussed in the future.

  145. Sonia
    Sonia July 24, 2010 at 6:22 am |

    IF the only reason she wouldn’t have had sex with him is because he wasn’t a Jew, if his race is the only factor in her determination not to have sex with him, that’s racist. She feels violated because she’s a racist.

    I must have missed the memo where race and religion were conflated. As lots of people don’t tire about pointing out, most Jews and Arabs are semitic people and not particularly racially different. Moreover, both Jews and Arabs have skin tones that go from near charcoal black to naer milky white.

  146. Lisa Harney
    Lisa Harney July 24, 2010 at 6:51 am |

    It is very interesting that I’ve never ever seen a man convicted of rape being defended so passionately and every word of his lawyer believed on a feminist board over the woman’s. I wonder if this is how other prominent rape cases will also be discussed in the future.

    Oddly, what I see are people critiquing the idea that having sex after lying about your religion (or being perceived as a member of a different religion) should be considered rape.

    I find this a pretty disturbing definition for rape, possibly because I have seen the same argument applied to trans people who don’t immediately disclose full medical history. Quite a few commenters have offered examples of why this kind of definition of rape is a bad idea.

  147. Lisa Harney
    Lisa Harney July 24, 2010 at 6:52 am |

    I meant to say “critiquing the idea … not defending the man.”

  148. pinyy
    pinyy July 24, 2010 at 7:30 am |

    It is very interesting that I’ve never ever seen a man convicted of rape being defended so passionately and every word of his lawyer believed on a feminist board over the woman’s.

    Both parties stipulate that the sex was what most people would call consensual: they both wanted to have sex with each other. She also argues that she would have had no retroactive objections if he had been Jewish. So we’re not taking his word for anything. That’s her version. That’s her case.

  149. BL1Y
    BL1Y July 24, 2010 at 7:36 am |

    “What’s with all the “racism” claims against the Israeli Jewish woman?”

    April: I think it’s people who miss the point. Whether it’s racist for this women to not want to have sex with an Arab man is irrelevant. The real issue is that if he was not an Arab man, and was just a random goy, he probably would not have been prosecuted.

  150. Fat Steve
    Fat Steve July 24, 2010 at 9:00 am |

    I’m just curious, and this may be totally a worthless point, even as a thought exercise, but I’m wondering what the punishment for this man would be in Saudi Arabia- I suppose they wouldn’t call it rape but I know there’s a penalty for adultery.

  151. Still learning
    Still learning July 24, 2010 at 9:21 am |

    I’m rather confused by Jill’s differentiation between it being up to the woman to decide how she defines her own experiences, and claiming that it is or is not an offense. The post is clearly written in a way that implies that this was NOT RAPE (i.e. “This story about an Arab man being convicted of rape for having consensual sex with a Jewish women” and “The woman did consent to sex with that man.”) I don’t know about this person, but if someone was to tell me that I can define my experiences however I want but that my rape was in fact consensual sex, I would be pretty confused. And angry.

    I definitely get that there is a difference between rapes that can legitimately lead to convictions and those that cannot, and this is what Jill has been emphasising in the comments, but I still see a very contradictory “it’s rape if she thinks it is, but actually it isn’t rape because I don’t think it is” rhetoric here.

    As for the rest of the conversation, it is difficult to draw lines here, but I think consent has to involve some level of honesty to be meaningful. You cannot consent to something without knowing what you are consenting to. I talk about STD issues with my partners before I pursue a relationship, and I view it as part of my negotiation of consent. If I ask my partner things like “when were you last tested?”, “what were the results?”, and “have you had any partners since you were last tested?” I expect them to answer honestly. The idea that there is nothing unethical about lying in that sort of situation is awful to me. Of course, expectation of disclosure is something else entirely, but expecting that people honestly answer (or refuse to answer) direct questions that are explicitly framed as part of negotiating consent is an absolute must in my mind.

    The major problem is the issue of people in marginalized groups who feel they cannot tell the truth for fear of violence and/or social stigma. But I think the question then becomes how consent works within these realities, not to deny that there is any connection between honesty and consent like many commenters seem to be doing.

  152. Kristen J.
    Kristen J. July 24, 2010 at 10:05 am |

    Jesurgislac,

    Do we get to use the tools oppression to get justice for ourselves? If I was raped by force by a person of color during Jim Crow in the US, I could probably get a conviction based solely on the argument that I could not have consented because no reasonable white woman would ever consent to sleeping with a person of color. Doing so might make me feel vindicated and avenged, but doing so also uses MY privilege which harms not just the bastard rapist who deserves it but also serves to further entrench institutional racism against a lot of people who don’t.

    This is one of the reasons feminism sometimes fails at intersectionality. We WANT to support her. She feels violated and honoring that lived experience is important. At the same damn time she took a position that just made being of a different religion/ethnicity a critical fact that a reasonable woman would need to know before having sex. Her arguments just added another layer of institutional oppression onto an already marginalized group.

    So yeah, I support her feelings of violation while I am at the same time sickened by the use of her privilege.

    Sonia,

    Hence the second IF. I’m aware of the ethnic/religious divide. Some in my family self-identify as Jewish because their ancestors were Jewish even though they aren’t practicing. My step sister-in-law converted so that she is a latina-jew (her phrase) and is practicing. There’s more than one view. If you’re arguing that their Semitism makes this not potentially racist I point you to Ireland…racism is based on perceived differences caused by heredity…not on any specifically pre-defined categories of race.

  153. Miss S
    Miss S July 24, 2010 at 12:05 pm |

    You cannot consent to something without knowing what you are consenting to.
    This.

    It’s sickening to me that people want to pull the “there’s only a small risk” to justify lying. It’s still a risk. Condoms break (hello morning after pill :) And you should never have the power to decide what should be an acceptable risk for someone else. People should be allowed to define their own boundaries. It’s selfish, manipulative, and arrogant to take that power away. See my example above about a woman and a doctor.

    It’s painfully clear who believes that sex is about personal pleasure and gain by any means necessary. Pretending that lying to gain consent is acceptable and even ideal is…. disgusting and unethical.

  154. Sonia
    Sonia July 24, 2010 at 12:33 pm |

    Her arguments just added another layer of institutional oppression onto an already marginalized group.

    This assumes that there is some objective hierarchy of groups with some above the others. From the story above people are building a large picture from their own biases from just a few pieces of information that she is a Jewish woman and he is an Arab man and that they have no other identities. He could be a wealthy and she could be poor. Or she may have had prior similar experiences which make this more traumatic for her. Or he may be separated from his wife and in the process of getting a divorce or just about any others. I believe justice should be blind in such cases as in every case. When it is not, you get cases like a black person getting a decade in jail for a little pot vs a white kid getting off with a misdemeanor. Given that Jill quotes another similar case in which a Jewish guy was imprisoned for a similar case seems that law was not particularly different for Kashur.

  155. Sonia
    Sonia July 24, 2010 at 12:37 pm |

    I’m just curious, and this may be totally a worthless point, even as a thought exercise, but I’m wondering what the punishment for this man would be in Saudi Arabia- I suppose they wouldn’t call it rape but I know there’s a penalty for adultery.

    Given that she is Jewish probably nothing. Saudi Arabian justice is quite dependent on things like whether you are Saudi or not. She could be in for a lashing though since she would have to accept she was willingly in company of an unrelated man and some more for fornicating.

  156. Rebecca
    Rebecca July 24, 2010 at 1:34 pm |

    Sonia, pretending you are a welfare officer willing to trade benefits for sex is not the same thing as pretending you are another race, even if Kashur did it completely maliciously.

  157. Kristen J.
    Kristen J. July 24, 2010 at 1:37 pm |

    Sonia,

    No amount of oppression makes it okay to oppress someone else. Any intersectional, anti-oppression movement MUST stand against all oppression – not just the oppression directed at people like me (women in this context). Otherwise you are not against oppression, you’re just against being oppressed.

  158. Jesurgislac
    Jesurgislac July 24, 2010 at 1:45 pm |

    Kristen J.: Do we get to use the tools oppression to get justice for ourselves?

    This is a foaf story, but it’s true to the best of my belief: a friend of a friend was raped while she was at college – a stranger attacked her. Friend is (I’ve met her) brown-haired, white, blue-eyed, below average height, conventionally attractive. Her attacker was black.

    The police believed her story, went all out to find her attacker, and he was caught, convicted, and jailed.

    She said afterwards, that she realized the main reason the police were prepared to go the distance for her and why her attacker was convicted, was because they were racist bastards: he was black, she was white, she was a middle-class college student of good character, he wasn’t: and she’d never met him or socialized with him before the attacker. But mostly: black man, white girl.

    Realizing this, she felt guilty about getting this kind of treatment, felt guilty that the man who raped her (who she said kept telling her during the attack that she was going to be his “girlfriend”, and demanded her phone number before he let her go) was getting that kind of treatment. But he did rape her. It wasn’t wrong that the police believed her and went all out to get him: it was wrong that if he’d been white, a fellow student or a teacher, if she’d been black, if she hadn’t been a middle-class well-spoken student, the police would have behaved differently. She didn’t set up the situation. She reported being raped. She had a right and responsibility to do that. It was wrong that not every rape victim would have been treated the way she was, but that wasn’t her fault – just her privilege.

    That’s why I think it would be wrong to condemn the woman in this story as racist, because we don’t know her side of the story. All we know is what the Israeli justice system made of the story.

  159. Sonia
    Sonia July 24, 2010 at 1:53 pm |

    No amount of oppression makes it okay to oppress someone else. Any intersectional, anti-oppression movement MUST stand against all oppression – not just the oppression directed at people like me (women in this context). Otherwise you are not against oppression, you’re just against being oppressed.

    I completely agree.

  160. Kristen J.
    Kristen J. July 24, 2010 at 2:08 pm |

    Jesurgislac,

    I think your foaf story is distinguishable. She did not file a complaint alleging the basis of the rape was his blackness. She did not testify that the basis of the rape was his blackness. Is it unfortunate that a white rapist would not sought with as much vigor? Absolutely, but she sought a conviction on the basis of his actions not his race.

    The woman in the present case was not merely drawn along by the latent racism of the criminal justice system…she actively cultivated it with her complaint and her testimony and regardless of all else that is immoral.

  161. Jesurgislac
    Jesurgislac July 24, 2010 at 2:40 pm |

    I think your foaf story is distinguishable

    Of course it is. But your general question was, “Do we get to use the tools oppression to get justice for ourselves?” and my general answer, illustrated by that story of a black man caught up in a racist crime enforcement and justice system, is: yes, we do.

  162. Elby
    Elby July 24, 2010 at 2:44 pm |

    I’ve been lurking on thris thread for the past few days and am pretty disturbed by some of the posts here.

    Christ, people, privilege is part of life. It’s unfair, but life is unfair. We can fight privilege, but it always rears its head.

    Kristen J, I’m disturbed by the hypothetical situation you related. Would you really be more upset about your privilege than about being raped? I’m sorry, but your privilege didn’t cause that hypothetical person to rape you. No woman who has been raped should feel guilty about justice being served, even if she has the unfair advantage of privilege. Women usually have the short end of the privilege stick, so in those situations where it works to your advantage, use it.

  163. Faith
    Faith July 24, 2010 at 3:10 pm |

    You’re not going to change my mind and I doubt that I will change your mind.

    Yes, having sex is a risk factor in and of itself. However, having sex with someone who actually has an STD is an even greater risk factor. No one else should get to withhold information from me that could permanently alter my life and my health. That is need to know information. As has already been said: People have a right to make the decision for themselves as to whether or not certain things are an acceptable risk for them or not.

    I’m personally extremely paranoid about my health. I don’t know that I would have sex with someone whom I knew had an STD, even with protection. I’m the type of person who walks around spraying door handles and phones down all the time due to my paranoia about germs and illness. I’m pretty positive that I have OCD, so that certainly doesn’t help the situation.

    Telling people that you are sick is just common courtesy. If I even have so much as a cold I will let the people around me know so they can decide whether or not taking the risk of being around me and possibly getting ill is something that they wish to do. I see no reason that other people shouldn’t treat other people with the same respect, even in regards to STDs.

    If it bothers you that my preference would probably be to not have sex with someone with an STD, so be it. But it absolutely is my right to make that decision.

  164. J
    J July 24, 2010 at 3:12 pm |

    Miss S:

    It’s painfully clear who believes that sex is about personal pleasure and gain by any means necessary. Pretending that lying to gain consent is acceptable and even ideal is…. disgusting and unethical.

    Oh for crying out loud, will you stop with this “You’re all just looking to have ORGASMS, you selfish STI-havers!”

    Fear of disclosure is about a hell of a lot more than that. It’s about being denied a chance at serious, long-term relationships, at physical affection, at emotional intimacy. It’s about being treated like you’re a carrier of the plague. It’s about hearing STIs constantly used as a punchline. It’s about hearing people call those without STIs “clean” and realizing that you are, therefore, “dirty.” It’s about the moral judgments people make (e.g. “I don’t have any STIs because I don’t sleep around,” which ignores that many people who have STIs contracted them from long-term partners with whom they’d stopped using barrier methods). It’s about shame and loneliness and stigma. It’s about the fact that refusing to disclose for all of these reasons has people on a feminist blog declaring that you should be criminally prosecuted for rape by deception. It’s about realizing that no one is on your side, and about not even being able to speak up to advocate for yourself because then everyone will know that, ew, you’re one of those people.

    For the record: I have an STI. And I do disclose it to all potential partners. So I’m not one of the people you’re talking about. I also believe it is every person’s right to ask a potential partner questions about their STI status and expect honest answers in return. But I understand why some people with STIs don’t affirmatively disclose: it’s because of people like you, who want to make sure you can stay as far away from us as possible, because you’re afraid of becoming us. Why are you afraid of becoming us? Because you know how we’re treated. You are part of the problem. And your attitude mostly leads to what was mentioned above, which is people avoiding getting tested even if they suspect something is wrong because they know if they’re diagnosed, they’re obligated to disclose and be labeled a pariah. If STIs were not so heavily stigmatized, far more people would get diagnosed, get treated, and inform their partners. Shame is one of the biggest barriers to preventing STI transmission, and it also makes it incredibly likely that anyone who is sexually active as an adult either has or will sleep with someone with an STI who suspects they have it but doesn’t feel obligated to disclose that because they’ve never been “offically” diagnosed. So, please, feel free to focus your contagion-related panic on those who know their status and are taking all possible precautions, if that makes you feel better. That won’t protect you from something like herpes, which 1 in 4 people have and which 90% aren’t aware that they have because herpes testing isn’t part of the normal battery of STI tests. You’re at far more risk, statistically, from one of those people than you are from someone who’s diagnosed and taking precautions (barriers, yes, but also suppressive therapy and avoiding contact with partners during outbreaks, which puts transmission risks into the very low single digits).

    Sorry for the semi-threadjack, but this thread keeps veering off into STI Shameland and it’s been very frustrating to read.

  165. Kristen J.
    Kristen J. July 24, 2010 at 3:18 pm |

    Jesurgislac,

    By using the phrase “using the tools of oppression” I specifically mean actively oppressing someone. So to rephrase, do we get to oppression someone to get justice for ourselves?

  166. Lisa Harney
    Lisa Harney July 24, 2010 at 3:39 pm |

    It’s painfully clear who believes that sex is about personal pleasure and gain by any means necessary. Pretending that lying to gain consent is acceptable and even ideal is…. disgusting and unethical.

    I come at this from the position of having seen a significant number of people lie about whether or not they were told something, and using that to justify attacking and even murdering women.

    Or to be more explicit: It’s painfully clear who wants to be able to use tools of oppression to be able to declare certain kinds of sexual partners as dishonest rapists whenever they wish.

    But I somehow think neither your extreme, nor the one above, is true.

    If you mandate disclosure for STDs, what will happen is that more people lie about whether they knew and use less protection to protect themselves from prosecution. It’s not about having sex whenever and with whomever you want, but about not setting up a system where absolute disclosure is expected or the sex becomes rape.

    This is something that can and would be used against all women as much as it would be used by all women, and I don’t want to live in that world.

  167. RD
    RD July 24, 2010 at 4:04 pm |

    A man lying about a condom is a different situation.

  168. GinnyC
    GinnyC July 24, 2010 at 4:43 pm |

    Thank you Lisa Harney @ 195 and everyone else who as been arguing similarly. That’s all I have to say on this tread, which I have been skimming with growing disgust because there are so many people out there who just don’t seem to get it.

  169. RD
    RD July 24, 2010 at 4:44 pm |

    That won’t protect you from something like herpes, which 1 in 4 people have and which 90% aren’t aware that they have because herpes testing isn’t part of the normal battery of STI tests. You’re at far more risk, statistically, from one of those people than you are from someone who’s diagnosed and taking precautions (barriers, yes, but also suppressive therapy and avoiding contact with partners during outbreaks, which puts transmission risks into the very low single digits).

    YEP.

  170. RD
    RD July 24, 2010 at 6:21 pm |

    Oh and by the way people who know their status are people who get tested. A really kind of surprising number of people NEVER get tested…and those are the people who are more likely exposing people to STIs, insisting on no protection, etc. That right there is your guy lying about wearing a condom.

  171. Miss S
    Miss S July 24, 2010 at 7:47 pm |

    Faith, they won’t change mine either. I’m also incredibly careful about things affecting my health and body. And I reserve the right to refuse sex with anyone at anytime for any reason. And I believe that lying to gain consent is a form of assault.

    It’s about being denied a chance at serious, long-term relationships, at physical affection, at emotional intimacy.
    Oh okay. The things you aren’t entitled to in the first place from any specific person. That’s what I thought.

    J, I was referring to people who lied, not those who just don’t volunteer information. Since it’s important to me, I ask. I’m not afraid of becoming you because of how you are treated. I don’t want an STD. I also don’t want the flu. I don’t want cervical cancer, or breast cancer. I don’t want disease and infection. No one does. That is why we have preventative measures. There isn’t just social stigma here, as there is with race. There are concrete health implications. I could get sick, be in pain, become infertile or die. It’s fucked up to expose someone to those possibilities (no matter how small you all claim the risk) and make decisions for what they should be comfortable with if they asked you and made it clear that an STD would close off the possibility of sex

    I assess risks for myself and I don’t want anyone thinking that they can do that for me. My body, my decisions, my consent.

  172. Miss S
    Miss S July 24, 2010 at 8:02 pm |

    If you can’t get someone in bed without lying to them, you don’t need to be in bed with them. It’s that simple.
    RD: what’s the difference with the condom story? It was a lie, it has health impacts, and he could argue that the risk of pregnancy was small.

    Yes I know STD’s can be transmitted from people who don’t know they have it. I also know that not everyone knows they have one. I wasn’t talking about them, but I am aware of the risks. If someone doesn’t know, then they just didn’t know.

    My pap smear came back abnormal and the doctor told me I could have HPV simply because 3/4 sexually active people had it. I explained that my ex and I had gotten tested and everything was fine before we started having sex and she told me that guys cannot be screened. (At the time- this was last year so maybe something has changed). I had to get another Pap after 6 months and it still came back abnormal. By this time (I have anxiety) I was so sure that I was going to get cervical cancer, never have kids, and die. BUT I wasn’t mad at my ex. He didn’t know. He was honest given the information he had. Luckily everything came back fine, but it was scary. Just like it was scary when I found a lump in my breast.

    In the threads above, I was specifically referring to people who lie. I’m not shaming people who have HIV or herpes- I just don’t want it. Just like I’m not shaming someone who has the flu. But being dishonest and placing someone else at risk is unethical. And dangerous.

    Lisa: Why would people use less protection to protect themselves if disclosure was mandated?

  173. RD
    RD July 24, 2010 at 8:17 pm |

    Most clinics etc. don’t test for HPV directly for women either, they just do the pap. I answered your question about the difference above…it is just caught in moderation (which is frustrating).

  174. PrettyAmiable
    PrettyAmiable July 24, 2010 at 9:03 pm |

    Thanks Lisa Harney, throughout.

  175. GallingGalla
    GallingGalla July 24, 2010 at 10:01 pm |

    Miss S, why do you continually refuse to acknowledge the issues that Lisa and I have raised regarding “disclosure” and how it affects trans women?

    I’m going to ask you point blank: If I don’t follow the party line that I’m “just a really really gay man” and dare to respect my truth that I’m not a man, was not born a man, and have never been a man*, am I a rapist when I have sex with another person? Yes or no?

    *”not a man” because I’m a transgenderqueer femme, a non-binary gender that is on the feminine spectrum but not the same as a woman.

  176. GallingGalla
    GallingGalla July 24, 2010 at 10:02 pm |

    Correction:

    …how it affects trans women and trans feminine people?

  177. piny
    piny July 24, 2010 at 11:51 pm |

    What GG said. You’re not acknowledging the contextual definition of “lie.” That’s the problem with this failure to disclose crime theory. It argues that it’s reasonable to assume that the person you’re having casual sex with is not one of those people. That’s an unreasonable thing to assume, whether we’re talking about STI-positive, non-white, Palestinian, or cis.

    This man’s “lies” didn’t consist of, “Yes, I’m a Jewish man.” They included using an “Israeli Jewish” nickname. A great deal of his “deception” involved his failure to be clearly Arab but not Jewish according to stereotypes about what those people are like. This case codifies prejudice as objectively reasonable, and punishes members of a hated minority for failing to conform to it.

  178. piny
    piny July 25, 2010 at 12:01 am |

    Yes I know STD’s can be transmitted from people who don’t know they have it. I also know that not everyone knows they have one. I wasn’t talking about them, but I am aware of the risks. If someone doesn’t know, then they just didn’t know.

    And if someone can get thrown in jail not for having an STD, but for knowing they have an STD, then fewer people will get tested. Because that way, “they just didn’t know.”

    Is this really such a difficult concept for you? If people get to choose between recklessness and criminalized recklessness, which one do you think will be more popular?

  179. Butch Fatale
    Butch Fatale July 25, 2010 at 12:03 am |

    Miss S – Because use of protection could be used in court to demonstrate knowledge. As in: “If I had known, I would have used a condom.” Or, “obviously he knew he had HIV, or he wouldn’t have insisted on a condom where there was no chance of pregnancy/where the woman was on birth control, etc.”

  180. ACS
    ACS July 25, 2010 at 1:10 am |

    OH SHE “RECANTED” SO SHE WAS DEFINITELY LYING RITE GUYZ???!!!!???!!

    She said she was lying. Yes, people falsely recant. But nothing indicates that this happened.

    After that happened, no one is claiming that a rape happened. We can, if you like, use the assumption that he actually raped her, but, if so, the only place where anyone would be willing to attest to that would be Feministe.

  181. Sonia
    Sonia July 25, 2010 at 1:10 am |

    Miss S – Because use of protection could be used in court to demonstrate knowledge. As in: “If I had known, I would have used a condom.” Or, “obviously he knew he had HIV, or he wouldn’t have insisted on a condom where there was no chance of pregnancy/where the woman was on birth control, etc.”

    This sounds a bit strained. It is like arguing that if I insist on a seatbelt for my passenger I must be a bad driver.

  182. Miss S
    Miss S July 25, 2010 at 1:16 am |

    GallingGala: My apologies, I thought I did. I wasn’t referring to disclosure as in offering information. I was only referring to lying to a direct question. Personally, I don’t believe that the trans issue and the STI issue are that similar.

    To answer your question: no, you aren’t. It sounds like you identify as transgenderqueer femme. If I asked you if you were a transgenderqueer femme, and you said yes, then you were honest. If I asked you if you were a gay man and you said no, then you were honest.

    Did I get it?

  183. RD
    RD July 25, 2010 at 1:22 am |

    Miss S I responded to you upthread.

  184. Jesurgislac
    Jesurgislac July 25, 2010 at 1:29 am |

    Kirsten: So to rephrase, do we get to oppression someone to get justice for ourselves?

    No. But we also need to consider how far an individual Israeli Jewish woman is actually directly oppressing anyone.

    Oppression and privilege aren’t generally what individuals do to individuals – we get muddled with intersectionality issues when we think of them that way. Privilege is what groups have. This woman in this situation had the privilege of being a Jewish Israeli: the disprivilege of being a woman. The man had the privilege of being a man: the disprivilege of being an Israeli Arab.

    Individuals can be responsible for acts of oppression towards other individuals, but it’s not clear that this is one of those situations: the clear act of oppression here is that the Israeli justice system treated an Israeli Arab man’s failure to fully and completely disclose his inferior ethnic status as rape, and that is racist.

    I’m uncomfortable condemning the woman as racist without hearing her version of events.

  185. convexed
    convexed July 25, 2010 at 2:32 am |

    “‘It’s about being denied a chance at serious, long-term relationships, at physical affection, at emotional intimacy.’
    ‘Oh okay. The things you aren’t entitled to in the first place from any specific person. That’s what I thought.’”

    Ok. I think we all get what is being repeatedly stated: you have the right to refuse to have sex with any person at any time for any reason. No one deserves to have sex with anyone else. No one is arguing with you about on those terms.

    However, physical affection, emotional intimacy, and fulfilling relationships (whatever that looks like to the individuals involved) are absolutely experiences that every person deserves. Not with whomever they choose–it doesn’t have to be you.
    But the problem with mandating disclosure, total honesty, insisting that your right to assess risk and protect your body trumps all, is that STI’s and sexual health are poorly understood, and our ‘understandings’ are heavily informed by stigma, myth, fear, and hatred. So individuals with STI’s are very aware of the obstacles they uniquely face in participating in intimacy with members of a society that is disproportionately frightened by sex and its inherent risks. It’s a bind: if they must affirmatively disclose, a lot of people will refuse to have sex with them. Sure, it’s their right to refuse, but it’s also another rejection and hurtful reminder of what ‘infected status’ means. If that’s a person you have regular non-romantic contact with, you’ve revealed very personal information and are now aware of that person’s discomfort with that information, and likely, with you.

  186. convexed
    convexed July 25, 2010 at 2:40 am |

    (sorry, hit submit too soon)

    On the other hand, if you are pinned with a direct question and refuse to answer, you are assumed to have something to hide. If you don’t wish to disclose, you are put in the position of having to lie, or refuse, which to many people sounds the same as saying ‘yes, i have an STI’, and may carry the same result for that interaction: either a refusal (which is always the right of either party) or an encounter in which the asking partner may scrupulously oversee the precautions and might be visibly nervous and finicky. (‘what if the condom breaks?’)

    Yes, honesty is desirable. Yes, no one is entitled to sex with any particular person. But until the culture that scripts irrational exaggeration of low risks is revised, and individuals are not subjected to fear-based discrimination, many people, including myself, can not support an unconditional demand of full disclosure *as a policy* or general expectation in all cases.

    If contracting an STI is the absolute end of the world (and most people care about their health and are nervous about illness or infection) one might consider removing oneself from sexual encounters rather than entertain an unreasonable and unrealistic expectation of total honesty from all potential partners. Because physical infection is not the only injury that can be suffered or inflicted in the exchange of direct questions, lies, and honest answers.

  187. Jesurgislac
    Jesurgislac July 25, 2010 at 4:03 am |

    I dunno, convexed.

    If we’re talking about criminal convictions, I do find it dubious to make it a crime to fail to disclose your STI status if you know you are infected.

    The proper course of action is for everyone, at all times, to always behave as if they themselves and the person they’re having sex with is infected, unless both partners are tested and are confident in both partners either being monogamous or having only rigorously safe sex outside the relationship.

    Years and years ago one of my first sex partners lied to me extensively about a whole load of things, some of which lies hurt me in ways I can still measure. I suspect that many of my sex partners have never been rigorously honest with me about all kinds of stuff.

    But leaving the criminal justice system aside, conflating “unreasonable expectations of total honesty from all potential partners” with “Let me know if you’ve got herpes, are HIV+, have crabs, a yeast infection” before I do something with you that will give both of us pleasure and may infect me” seems like a valid moral/ethical expectation of how we’ll behave towards each other:

    Don’t do something to me (or let me do something to you) that will mean I need to seek medical attention afterwards, without first checking with me that I’m Okay with the degree of medical attention I’ll need.

    It works for BDSM. Why shouldn’t it work for vanilla sex? Safe, sane, consensual, and full communication about matters respecting health.

  188. piny
    piny July 25, 2010 at 4:21 am |

    GallingGala: My apologies, I thought I did. I wasn’t referring to disclosure as in offering information. I was only referring to lying to a direct question. Personally, I don’t believe that the trans issue and the STI issue are that similar.

    To answer your question: no, you aren’t. It sounds like you identify as transgenderqueer femme. If I asked you if you were a transgenderqueer femme, and you said yes, then you were honest. If I asked you if you were a gay man and you said no, then you were honest.

    Did I get it?

    No.

    Because, you see, under the law, Galling Galla’s status is ambiguous–or, more properly, suspect. Most people, and most legislatures, do not recognize any such “transgenderqueer femme” category.

    GG’s status becomes especially suspect if we’re employing some sort of “reasonable cissexual” standard, such that GG must predict and manage a certain base level of normal social ignorance and transphobia. GG’s refusal to acknowledge that most people do not respect GG’s gender is a form of lying: GG is deceiving them by using definitions of “woman” and “man” that they do not use. In other words, GG’s insistence that GG is not a gay man is a falsehood; GG’s refusal to seem like a gay man and identify as a gay man is fraud.

    This may seem like some sort of abstruse theory problem to you, but it isn’t. Trans people have been sued for fraud for identifying as their gender; they have been arrested for fraud for presenting as their gender; they have been murdered with impunity for partnering as their gender. This is what the “-panic” defense is: existence as assault.

    It’s not a separable problem, either. The most fraught categories are frequently the least stable. The most hated people are always the least understood. It is always the privilege of the dominant group to ignore any complexity, and always the burden of the minority group to manage any difficulty and remove any confusion. This was true–is true–with racial categories as well. White people were never penalized for racism. People of color were penalized for their inability to fit within a false racist worldview.

    You’re defending the right of the dominant group to define their own willful ignorance as entirely passive–”innocent,” in the words of the officiating judge in the OP case. This doesn’t just carry the potential for abuse. It enshrines abuse in law.

    And even if you can argue that STD risk is different, transphobia and racism don’t seem all that dissimilar. Do you think a trans woman should be charged with rape if she goes home with a guy who thinks trans women are men? That seems a bit ass-back-wards to me.

    This sounds a bit strained. It is like arguing that if I insist on a seatbelt for my passenger I must be a bad driver.

    This exact same defense has been successfully used in rape cases. Women who beg their rapists to wear condoms are implicitly giving consent to the sex act. Seriously.

  189. makomk
    makomk July 25, 2010 at 5:27 am |

    Jesurgislac: in what way, precisely, did his male privilege actually benefit him in this case? Imagine that an Israeli Jewish man claimed an Arab women tricked him into consenting to sex by pretending to be Jewish. What would you expect the police and court reaction to be? This person is going to jail because he’s Arab and because he’s male. Racism often works this way.

    What’s more, if the man’s claims are accurate, then it’s indeed her privilege and racism that lead to this. She assumed that because he had a Jewish-sounding name and didn’t look different, that he was in fact Jewish. Being able to assume that everyone is a member of your own majority ethnic and religious group unless they mark themselves out as different? That’s privilege. Especially as that expectation is backed by systematic discrimination against non-Jews in housing and employment that ensure they’re mostly restricted to their own towns and villages.

    (Seriously, what is it with male privilege supposedly trumping all other forms of oppression? It’s bizarre.)

  190. Sonia
    Sonia July 25, 2010 at 5:35 am |

    Don’t do something to me (or let me do something to you) that will mean I need to seek medical attention afterwards, without first checking with me that I’m Okay with the degree of medical attention I’ll need.

    While I am sympathetic to the plight of STI positive people and it is true that people have a very poor understanding of risk, especially low levels of risk (while engaging in protected sex with a HIV-positive person you probably have a higher risk of getting into a car accident on the way to the tryst), I still don’t think it is up to one individual to decide on acceptable risk for another. Even in cases of treatable STIs, not everyone responds the same to medication, some people may be allergic to antibiotics. If the woman gets pregnant she risks transmitting the disease to the fetus.

  191. Sonia
    Sonia July 25, 2010 at 5:39 am |

    in what way, precisely, did his male privilege actually benefit him in this case?

    Rape is a conscious process of intimidation by which all men keep all women in a state of fear. — Susan Brownmiller, Against Our Will: Men, Women and Rape

    Male privilege is always there.

  192. Claire N.
    Claire N. July 25, 2010 at 7:14 am |

    Yep just like Brownmiller used her white privilege to denigrate BLACK MEN as being rapists and more violent towards women than other men.

  193. Claire N.
    Claire N. July 25, 2010 at 7:16 am |

    To be clearer, Brownmiller in Against Our Will devotes a chapter to denigrating black men. Arab/Muslim men are castigated and hated in much the same way, as if these men of colour are more likely to rape and treat women like garbage than white men.

  194. ginmar
    ginmar July 25, 2010 at 7:34 am |

    Bullshit. She wrote about inter-racial rape that didn’t spare anybody. Christ. Black men don’t get a pass on rape, and she was writing when several black male radicals embraced the concept of raping white women as revenge.

  195. PrettyAmiable
    PrettyAmiable July 25, 2010 at 8:16 am |

    Sonia, male privilege is always there, but it doesn’t make it the trump card over all other privileges. This suggestion is like the opposite of the oppression Olympics.

    Also, I know you’re just quoting an author, but I really dislike having my experiences defined for me. I was assaulted just the two times, thank you.

  196. convexed
    convexed July 25, 2010 at 10:04 am |

    Jesurgislac,
    Of course, you’re right. My intention was not to conflate unreasonable demands with the reasonable and healthy standard of asking a partner about STIs, or discussing openly how to negotiate that risk.

    My response (unclear, on rereading) was to what I was reading as an unyielding and unnuanced stance put forth in comments by Miss S and Faith that haven’t satisfactorily acknowledged why total disclosure is problematic for a lot of people, or seemed to consider that in the fraught nature of sexual relationships and honesty, other things might be at stake other than the medical risk, which is often misunderstood or heightened by cultural attitudes above other medical/health risks we take every day.

    And, while I’m all behind the view that (paraphrase) no one is entitled to sex with any other person, I don’t extend it to (paraphrase) no one is entitled to physical affection, emotional intimacy, or long-term relationships, because while no one can demand or count on those things from whomever they like, that argument, paired with the stigmas and judgments that often accompany disclosure scenarios, is too close to the ‘certain kinds of people shouldn’t expect emotional intimacy’, etc.

    I’m not convinced that a good amount of people (esp young people conditioned by abstinence-only sex ed) are willing or prepared to negotiate actual risk w total respect for the potential partner, rather than react insensitively or squeamishly or to display anger that the person who had an STI had even allowed the situation to go so far as the disclosure conversation; that the potential partner had ‘strung them along this far’ and ‘I’m so glad I *happened* to ask or who knows if you would have told me’, etc.

    I agree with previous commenters who have said the onus is on the person with particular preferences/deal-breakers to ascertain the details of the situation. But, I find the whole set-up and frame of conversation problematic, because it assumes no one ought to have a compelling reason to shy away from a direct question. Which is why I don’t totally support a one-size-fits-all direct question session. I do support honest and considerate conversations where questions about risks are framed with total respect, and the potential partners aren’t put into a corner where even a lack of response can be read as an incriminating response.

    Again, my previous posts from late last night were a bit hazy, so thanks for calling me out on the troublesome conflation, Jesurgislac. This is a question with fair points and hard realities on both sides, so thoughtfulness and clarity are definitely necessary in the discussion.

  197. killjoy
    killjoy July 25, 2010 at 10:07 am |

    I am getting really frustrated by the false dichotomy here — this notion that either you think this man’s behaviour was totally fine and unproblematic and everyone should go around misrepresenting their intentions to potential sexual partners, or you think he should be locked up for rape. Look, there are huge social and financial costs to criminalizing any kind of behaviour — more policing, more court time, more jail cells, more lost income, more split-up families. Sometimes it’s worth it. A lot of the time it’s not. Involving the state is just not the best solution for every problem.

  198. Faith
    Faith July 25, 2010 at 10:37 am |

    “My response (unclear, on rereading) was to what I was reading as an unyielding and unnuanced stance put forth in comments by Miss S and Faith that haven’t satisfactorily acknowledged why total disclosure is problematic for a lot of people”

    I understand why it’s considered problematic to a lot of people. That doesn’t change the fact that people still have an obligation to be honesty and upfront about whether or not they have an STD if someone is considering having sex with them. Problematic or not, I and other people still have a right to make an informed choice about who we are being sexually intimate with.

  199. Kristen J.
    Kristen J. July 25, 2010 at 10:50 am |

    Oppression and privilege aren’t generally what individuals do to individuals – we get muddled with intersectionality issues when we think of them that way.

    I couldn’t disagree more. To abdicate responsibility for individual actions is inappropriate. When I used the word “crazy” in another thread the other day, *I* engaged in an act of oppression that was an exercise of my TAB privilege. *I* acted wrongly. There is a kyriarchial system, but I am still responsible for MY actions.

  200. Miss S
    Miss S July 25, 2010 at 11:51 am |

    And if someone can get thrown in jail not for having an STD, but for knowing they have an STD, then fewer people will get tested. Because that way, “they just didn’t know.

    No one suggested that anyone get thrown in jail for having an STD. Not even close.

    But the problem with mandating disclosure, total honesty, insisting that your right to assess risk and protect your body trumps all

    It shouldn’t be a problem to give someone the right to assess risk for their own body and health. My right to protect my body should trump all.

    If contracting an STI is the absolute end of the world (and most people care about their health and are nervous about illness or infection) one might consider removing oneself from sexual encounters rather than entertain an unreasonable and unrealistic expectation of total honesty from all potential partners.
    So if I expect honesty and the right to decide for my body what I am comfortable with and not letting others define it, I should not have sex? Seriously? People need to be honest and not make decisions for someone else’s body. If they can’t handle being honest, respecting adults, then they need to remove themselves from sexual encounters. Women –and men- should always have the right to make decisions for their own bodies, not someone else’s solely for their own benefit.

    but it’s also another rejection and hurtful reminder of what ‘infected status’ means.
    Putting someone else at risk for infetitlity, infection, and death is far more of a concrete impact than hurt feelings.
    Your right to exist without hurt feelings in no way trumps my right to assess risk and make decisions for my own body. It’s awfully paternalistic to make decisions for someone’s else’s body to feel good about yourself.

  201. Fat Steve
    Fat Steve July 25, 2010 at 11:53 am |

    I’d like to go back to the OP and the statement: The court reasoned that “If she hadn’t thought the accused was a Jewish bachelor interested in a serious romantic relationship, she would not have cooperated.”

    Now I have nothing against people having consensual casual sex, but how on earth could someone think someone who has sex with someone in a public place within minutes of meeting them, was “interested in a serious romantic relationship”?

  202. Miss S
    Miss S July 25, 2010 at 11:56 am |

    I don’t think the STD issue is the same as the trans. Nor do I think the trans and race issue are the same. I am aware that people consider gender identities ambiguous. But if you have herpes, and you know you have herpes, there is no room for subjectivity. You definitely have it. It’s not a matter of how society constructs you, how you define yourself, etc.
    I suppose a sex operation would be an objective question.
    You either had one or you didn’t. If I asked you if you had one and found out you lied, I would find it problematic and my feelings would be hurt. However, having sex with you does not impact my physical health. So I would feel betrayed and I would feel like I couldn’t trust you BUT I would not be at risk for health complications. You didn’t endanger me. Big difference.

  203. Miss S
    Miss S July 25, 2010 at 12:04 pm |

    And, while I’m all behind the view that (paraphrase) no one is entitled to sex with any other person, I don’t extend it to (paraphrase) no one is entitled to physical affection, emotional intimacy, or long-term relationships, because while no one can demand or count on those things from whomever they like, that argument, paired with the stigmas and judgments that often accompany disclosure scenarios, is too close to the ‘certain kinds of people shouldn’t expect emotional intimacy’, etc.

    It’s not too close. I never said certain people shouldn’t expect emotional intimacy. Neither did Faith. I suggested that they find someone who accepts them for whatever their issue may be. Some people are fine with having protected sex with someone who had an STD. Sleep with them. Not someone who has made it clear that they aren’t okay with it. Not someone who is consenting to sex with a person without an STI but actually having sex with someone who is.

    Anything else is more than deceitful: it’s dangerous. I don’t respect the idea that someone else can place my body in harms way without my consent. Especially when sexual relationships should rely on communication, repsect and trust. Any sexual relationship without those three things is bordering on (if not outright) abusive.

  204. evil_fizz
    evil_fizz July 25, 2010 at 12:44 pm |

    I’m rather confused by Jill’s differentiation between it being up to the woman to decide how she defines her own experiences, and claiming that it is or is not an offense.

    Rape as an offense is defined by a criminal code. By way of example, under the Uniform Code of Military Justice (criminal law for the US military), penetrating the vagina of an unconscious woman is defined as aggravated sexual assault unless the assailant was the person who rendered her unconscious. (If the assailant rendered her unconscious, then that’s rape.) However, I don’t think that this definition somehow limits people whose experiences don’t meet that legal definition of rape in defining their own experiences.

  205. killjoy
    killjoy July 25, 2010 at 1:48 pm |

    I don’t respect the idea that someone else can place my body in harms way without my consent. Especially when sexual relationships should rely on communication, repsect and trust. Any sexual relationship without those three things is bordering on (if not outright) abusive.

    Okay, but how much communication and trust do you expect to have with someone you met for the first time fifteen minutes ago? And if the answer is “not all that much” (as it would be for most people, I think), does that mean having sex with people you don’t know well is bad? If it is bad, is it so bad that you want to get the criminal justice system involved and lock people up for it?

    What I’m saying is: this is an ideal. There’s a lot of territory in between “ideal” and “criminal”.

  206. A.W.
    A.W. July 25, 2010 at 1:56 pm |

    “Not someone who has made it clear that they aren’t okay with it. Not someone who is consenting to sex with a person without an STI but actually having sex with someone who is.”

    Miss S,

    Ah, but see, if someone wants pertinent information they should ask for it before engaging in sex (or anything else they consider important). The way you’re framing it directly above, it sounds like someone is relying on the general, assumed consensus of how disgusting they think having sex someone with an sti would be and that the person with an (as yet unmentioned) sti should go away immediately. So the burden is already on people with sti’s to leave immediately before conversation even happens. And if conversation does happen, they’re expected to disclose without anyone asking them first. Which, no. There’s particular sti’s that I don’t give a damn about (and ones I do) when engaging in safer sex, and it’s – up to me- to ask about them of potental partners because they can’t read my mind. If everything were considered equal, there would be equal responsibility to ask about sti’s of possible partners.

    People (with or without an sti) should have to engage in a conversation with potential partners and ask questions pertinent to their sex life and get answers from each other, like equals. Y’know, instead of assuming their possible partner is sti-free until they’re guilted away by everyone else’s general disgust.

    And if you don’t have any problems with discussion from – both – parties on sti’s at the ‘dating/hookup’ stage, then there’s no reason to argue.

  207. PrettyAmiable
    PrettyAmiable July 25, 2010 at 2:09 pm |

    “If I asked you if you had [a sex change operation] and found out you lied, I would find it problematic and my feelings would be hurt.”

    Miss S, can I ask for clarification? No one is arguing that your feelings shouldn’t be hurt if someone lied to you before you gave uninformed consent to sex. The question is whether you can press charges against this person for rape by deception.

  208. Butch Fatale
    Butch Fatale July 25, 2010 at 2:29 pm |

    I think we’re in a derail within a derail of the original conversation. The topic now seems to be Miss S’s view of how things should work, despite other people’s demonstrations of how they actually work. What relationship does one person’s views on what a person should tell her before sex have on what is and should be either grounds for criminal prosecution, or valid evidence in a court of law? Particularly since in the context of the current conversation, it’s apparently valid to dismiss actual occurrences and legal realities in favor of statements of one’s personal ethics. I know it’s Sunday afternoon in NY, so maybe Jill isn’t around, but could we get some moderation in here?

  209. Lisa Harney
    Lisa Harney July 25, 2010 at 2:35 pm |

    I suppose a sex operation would be an objective question.
    You either had one or you didn’t. If I asked you if you had one and found out you lied, I would find it problematic and my feelings would be hurt. However, having sex with you does not impact my physical health. So I would feel betrayed and I would feel like I couldn’t trust you BUT I would not be at risk for health complications. You didn’t endanger me. Big difference.

    But you’re placing the onus on someone else, asking if they’ve had GRS. Why would it be important to know? Why do you need to know? Should people ask you if you’ve had your tonsils or appendix taken out? If you’ve ever had an abortion? How about a c-section? Have any children? Are you a virgin? At what point do the questions become too invasive?

    Why not instead make it clear whether such surgery is a deal breaker for you? And if it’s not a deal breaker, why ask in the first place? And if you’re concerned that trans people won’t self-select out of your dating pool when you ask that question? The same’s true if you ask them directly if they’ve had surgery.

  210. RD
    RD July 25, 2010 at 3:24 pm |

    “Not someone who is consenting to sex with a person without an STI but actually having sex with someone who is.”

    You can’t “consent to sex with someone without an STI.” Even if you are both virgins…one of you could still have herpes and not know it, for example. Even if you are both monogamous and have been tested regularly (getting tested one time is not enough to rule stuff out)…one of you is actually still pretty likely to have either HPV or herpes, or both, as those things are not generally tested for when you go in to get tested. HPV is basically never tested for unless someone has precancerous lesions on her cervix.

    And your chances of getting an STI are much higher from someone who doesn’t know they have one than from someone who does. If someone knows they have one they are probably a lot more responsible than your average Joe, who is probably just going around having sex with whoever without getting tested EVER, because you know, a lot of people do that. And those are the people who lie about wearing a condom.

    Consider a husband and wife couple, somewhere in the world. The husband is cheating on the wife and contracts HIV without knowing it. He transmits it to his wife. His wife has more contact with the medical establishment than he does (gynos, or at least if she gets pregnant) and gets tested and finds out she is HIV-positive. She is scared of her husband and his reaction because he is abusive. But her husband finds out, and takes her to court for not telling him. She is convicted of rape. Think this is just an abstract exercise? Its not. THIS ACTUALLY HAPPENS.

    Consider a survival sex worker. She gets tested regularly because she cares about her health. She discovers that she has contracted HIV. She keeps working because she has to (though I do not object to the HIV-positive working in general, even if not survival sex workers) but she is careful and always uses protection. She always uses protection. If she has access to medical care she goes on anti-retrovirals, if she doesn’t, she can’t. A customer lies about wearing a condom, or pressures her hard into not wearing one, so she is scared for her safety. He contracts HIV (still somewhat unlikely but it happens), and takes her to court for rape.

    And so on. And so forth.

    As others have pointed out, even if it is just acquaintances hooking up, if you disclose something like that you can be putting yourself in danger.

  211. Claire N.
    Claire N. July 25, 2010 at 8:06 pm |

    Yep Jill OK.

    But I will say this: typical white woman response–see ginmar, to just ingest what Brownmiller said uncritically and to assume that when someone criticises that particular chapter, that the one offering critique is saying ‘that black men should get a pass.’

    Also Jill, my point relates to the wider issue about how certain men are demonised because of their race which is what is happening in this rape by deception case.

  212. Sheelzebub
    Sheelzebub July 25, 2010 at 8:46 pm |

    OK, yeah, got it, she said she was forcibly raped, recanted, the prosecution switched tactics. But. . .I don’t know. It just seems odd. Within 15 minutes of first meeting they go knock boots? Again, something’s off–and I’m not saying that to assert that he forcibly raped her or that she was lying, or that the prosecution was acting ethically or whatever. I’m saying that there is likely more to this–more about her, more about him, more about this–than we know.

  213. Miss S
    Miss S July 25, 2010 at 10:18 pm |

    Jill, I would like to clear up some things before you delete. Some of my previous comments may not have made it through and I would like to address the valid questions posed by other commenters. Of course it’s not about how only I think things should work, but isn’t this a discussion?

  214. convexed
    convexed July 25, 2010 at 10:29 pm |

    As Sheelzebub just mentioned, there’s more to this than we have available to us for the purpose of this discussion. I’m guessing that the legal issue of rape by deception is going to be full of cases fraught with complexity, unknowns, unverifiables, to the extent that the likelihood of uselessness or further harm as outcome is inevitable.
    Of course, rape is legally classifiable, and we also have ways of talking about it to keep the discussion from going into unproductive ‘grey’ territory. I’m not a lawyer or legal expert, but I do know that being able to establish certain boundaries is crucial in ensuring that rape survivors and victims have as unobstructed a chance as possible at justice. It’s not a reassuring statistic, but strides made towards finding clear-cut vocabulary and establishing precedent to address drug-facilitated sexual assault, for instance, is an important part of fighting to end rape.
    So, back on the OP track, I think the rape by deception charge contains too many unknowns, too many potential he said-she said distortions and manipulations, too many potential after-the-fact revenge accusations (all of these possibilities are mentioned in comments earlier in the thread) to be reasonable to criminalize.
    We have to work with the current realities of relationship and society dynamics, and to make deception a criminal offense is to institute a new template for abuse and misuse of the justice system, enormous use of resources without a return in the form of a guarantee (or even likelihood) of better justice for all.

  215. Miss S
    Miss S July 25, 2010 at 10:35 pm |

    Killjoy: I’m only speaking for myself, but I did post upthread that I typically spend a lot of time getting to know someone before any sexual encounter. I wouldn’t expect much trust and communication after knowing someone for 15 minutes.

    A.W: I agree. It should be up to individuals to decide what information is important to them before sexual encounters and ask for it. I’m only referring to people who would lie when asked. Not people who just don’t volunteer. If I meet someone, I have no way of knowing what they want/need to know and it would be ridiculous to volunteer 30 random facts about myself (I’m a Virgo; I had eye surgery when I was 9; this isn’t my real hair color) and hope that covers what they need to know. It’s up to them to ask what they want/need to know. So yes, open discussion from both parties.

    Pretty Amiable: No, hurt feelings should not lead to criminal charges of rape by deception. My apologies if I wasn’t clear on that. I thought I mentioned it, but the comment thread is so long that it might have been missed or it didn’t make it through.

    Lisa: Personally, I’ve never asked. I was just trying to give an example of something objective (Have you ever had an operation) versus something that is considered subjective (to use an example given to me, gay male vs transqueer). I only call it subjective because as pointed out, what someone identifies you as may not be what you identify as. In that case, I’m only concerned with how someone self identifies. I don’t mean to suggest that anyone’s identity isn’t valid. And yes, it’s the responsibility of the person who has a deal-breaker to ask.

    I think some of my comments didn’t make it through but I don’t think hurt feelings are grounds for rape by deception.
    If the guy in the O.P didn’t lie and the woman assumed, I’m not sure how this is even a case. Especially if they knew each other for 15 minutes. I think there is more to this story than we know.
    I don’t think trans or queer people are frauds nor do I think trans/queer people should be tried in the court system for changing identites and engaging in sex. Not at all, I never said that. But I would like to extend my apologies again if I offended anyone.

  216. Jillian C. York
    Jillian C. York July 25, 2010 at 11:01 pm |

    What’s been ignored in this discussion is the fact that the judge made his decision based on the idea that the woman would not have had sex with the man if she hadn’t thought he was in for a serious relationship.

    The implication is that “a reasonable woman” wouldn’t have had a serious relationship with an Arab – completely racist. The other issue, of course, is what kind of woman assumes that a sexual partner SHE JUST MET is in it for the long term?

    This is indefensible. Note that the judge didn’t base his decision on the fact that the man was married (also fraud), but only on his ethnicity.

  217. ACS
    ACS July 26, 2010 at 1:22 am |

    Again, something’s off–and I’m not saying that to assert that he forcibly raped her or that she was lying, or that the prosecution was acting ethically or whatever. I’m saying that there is likely more to this–more about her, more about him, more about this–than we know.

    I agree.

    I suspect that the entire narrative of the rape is something that was cobbled together at the last minute by the prosecution in order to ensure a conviction. I suspect that it contained elements of the abandoned “forcible rape” story and elements of what was necessary to ensure a conviction. Thus, the “fifteen minutes” element is something that was pulled from the beginning of the testimony — before she recanted — and the “Jewish bachelor” element is something that was pulled from the end of the story, after she claimed it was consensual.

    I can’t imagine what the truth actually is.

  218. Ruchama
    Ruchama July 26, 2010 at 6:16 am |

    The implication is that “a reasonable woman” wouldn’t have had a serious relationship with an Arab – completely racist.

    Well, in Israel, they wouldn’t be allowed to be married. (All marriages in Israel have to be conducted by the religious authorities, and neither the Jewish authorities nor the Muslim ones will marry an interfaith couple. There are a few who have gone to other countries to get married, and those marriages are recognized as valid once they get back to Israel, but it’s not very common, and of course, that option is only available to the people who have enough money to plan a wedding in another country.)

  219. Kristen J.
    Kristen J. July 26, 2010 at 6:51 am |

    Okay, I’m all for assigning responsibility for making racist allegations…but what’s with the sudden slut shaming?

    There have been a couple of “what kind of woman” comments that relate solely to her (supposed) choice to have sex with a man she just met.

    (1) She may have been forcibly raped.
    (2) Even if she decided within 15 second to have sex with someone…that’s perfectly acceptable as are any impressions she had of where the encounter might go in the future

  220. Sheelzebub
    Sheelzebub July 26, 2010 at 8:13 am |

    <iOkay, I’m all for assigning responsibility for making racist allegations…but what’s with the sudden slut shaming?

    There have been a couple of “what kind of woman” comments that relate solely to her (supposed) choice to have sex with a man she just met.

    Exactly. Cosigned and seconded. (And I really hope I didn’t come off as doing that!) If there were issues or background facts that have not come to light through these news stories–I don’t want to speculate here and cause more derailments, or flaming–then it would likely not be as cut and dry as some folks would like us to think. It reads way too much like an anti-feminist scare story that you get in an email forward.

    Something about it bugs me no end–I feel like we’re getting half the story, if that.

  221. Sheelzebub
    Sheelzebub July 26, 2010 at 8:25 am |

    The other issue, of course, is what kind of woman assumes that a sexual partner SHE JUST MET is in it for the long term?

    I have my own speculations (which would not garner much sympathy from me towards the accused if they turned out to be true), but I’d rather not post them here. I don’t know. But can we please stop with the “what kind of a woman would” bullshit? That shit comes up in every.single. rape case I’ve seen. What kind of woman would go to that bar? (Big Dan’s gang rape). What kind of girl would shave her pubic hair (OC Rape case). What kind of woman would do X? I’m not seeing anyone ask what kind of a husband and father would fuck a stranger 15 minutes after he met her.

    I mean really–express outrage at the racism, yes. Express outrage at injustice, yes. Say that you don’t agree that this case, as presented in the news stories, is a case of rape. But you can do that without engaging in fucking sexist rhetoric, though. There’s plenty of that shit to go around for dinner and dessert, and it’s not as if we haven’t heard it a thousand times already.

  222. Fat Steve
    Fat Steve July 26, 2010 at 9:49 am |

    “I’m not seeing anyone ask what kind of a husband and father would fuck a stranger 15 minutes after he met her.”

    The fact that people are pointing out how she shouldn’t have expected him to be ‘looking for a serious relationship’ is a judgement on HIM. It is nearly impossible to understand how she could see this guy as a serious suitor.

  223. Fat Steve
    Fat Steve July 26, 2010 at 9:51 am |

    One thing I feel I should point out- because no one else has-

    Even horribly vicious racist women don’t deserve to be raped.

  224. Niki
    Niki July 26, 2010 at 11:05 am |

    There’s a lot of passionate debate here, and I think with good reason. This is tricky. I am generally not a fan of slippery slope arguments, but there are definitely gray areas in this sort of situation and I think it’s tough to determine where to draw the line, legally. For the most part, I agree with Jill. I think pretending to be someone you’re not (as in, a particular person that you’re not) is far more harmful and a greater assault than lying about your religion. My boyfriend’s best friend has an identical twin brother, and his fiancée and I have cracked jokes before about whether when they first started dating, before she knew them well enough to tell them apart, she might have accidentally had sex with the wrong brother. But we’re just kidding around, making the usual twin jokes, and we all know that if these guys were to actually do that to a woman one time, it would be really, really wrong. There’s no question in my mind that’s rape, and I’m sure these guys would agree. And something similar has happened to a friend of mine – she started fooling around with a guy at a party, afterward she passed out on the couch, and it was dark, and in the middle of the night another guy came along and initiated sex with her, which she participated in enthusiastically until she realized it wasn’t the same guy, at which time she had to fight the guy off of her. (The guy was responding to her calling him the wrong name, so it’s not like he didn’t know what was happening.) She was raped. And of course, since she was drunk, it was all gossipped about as her bad decision, her mistakes, with the usual victim-blaming going on, and the guys just behaving as boys-will-be-boys testosterone factories rather than tag-team rapists. But I digress.

    However, I take a little issue with this statement:

    Why is lying about one’s financial situation less excusable than lying about one’s religion? I don’t see why lying about money in exchange for sex is criminal and lying about religion isn’t. I wouldn’t want to see a situation where a guy picks up a girl at a bar, telling her he’s a millionaire with a private yacht, and he sleeps with her, and she finds out he lied, and she is able to criminally charge him with sexual assault. That is setting as dangerous a precedent as the case of the Jewish woman above.

    Don’t get me wrong, I understand that there are degrees to all of this. If it’s beyond a one-night-stand, and an actual relationship, based on trust, is formed, and someone is lying about money and what they can provide for their partner, maybe a rape charge could be justifiable. Maybe. It’s such a case-by-case situation; again, the gray areas are massive. I just don’t think it’s fair to suggest that lying about one thing is more excusable than lying about another; deception in general is wrong, and sexual assault is wrong, and determining where these things overlap is an incredibly complicated process that can’t be summed up based on anecdotes and what-if situations; but unfortunately, legally, those lines have to be drawn. So how does one define boundaries like these? It’s a tough question…and I don’t have any suggestions.

  225. Niki
    Niki July 26, 2010 at 11:07 am |

    Oops…I don’t know how to do blockquotes. This is the part I was trying to highlight:

    “Adding money and social benefits into the mix, and lying about one’s ability to provide those things in exchange for sex, brings the issue to another level, since there is coercion involved. Rape by deception? Yeah, I think so.”

    The whole blue part of my comment should have fallen after that quote…sorry!

  226. Hannah
    Hannah July 26, 2010 at 2:49 pm |

    I apologize if this idea has already been stated. I admit, I only read the first dozen or so comments.

    I have to say I am with Thomas and KB — and I wonder if we took the religious/identity question out of the contentious Arab-Israeli conflict, if we saw it differently.

    It comes down to the idea that she thought she was having sex with someone who she considered an appropriate partner for herself, and avaliable to possibly become a long term partner. Now, everyone has their own standards. For example, I know someone who has a physical disability, and uses a wheelchair, but chooses not to date/be sexual with people who have visual disabilities. She has a love for painting and visual arts, and can’t imagine having a partner with whom she could not directly share that passion. She says she’s had relationships in the past fail because even great intentioned people struggle when they can’t share their passions. She cites a great relationship that failed because he loved camping, and with her disability it was much to difficult to manage, and the one time they did try, he couldn’t really share with her the great hikes, and wonders of swimming in the lake. I was shocked the first time I heard my friend describe the fact that she “wrote off” people with visual disabilities as sexual partners, despite being a strong advocate for people with all kinds of disabilities, but in the end, I think she has a point. The real question at issue here, and I’m not sure its adequately addressed, is the court’s prospective that the sex was (and would always be?) about securing a long term partner. For my friend, who does serial monogamy, it is. In the question of whether its rape — how does that play in??

    If this woman was just having sex for sex, rather than for a long term partnership, would the omission (or lie, as it is unclear) matter? Legally? morally? I’m not sure… But obviously having to tease out the motives for the at-the-time consensual sex would be legally difficult if not impossible.

  227. Lisa Harney
    Lisa Harney July 26, 2010 at 3:18 pm |

    But even if that’s the case, even if she expected a long-term relationship with a man she just met, is it legally rape?

  228. Monday Open Post – 20th Anniversary of the ADA at Questioning Transphobia

    [...] On Rape and Deception – comments get problematic, so be warned [...]

  229. Susan
    Susan July 26, 2010 at 8:46 pm |

    “I’m not seeing anyone ask what kind of a husband and father would fuck a stranger 15 minutes after he met her.””

    Well, perhaps you can ask him… after he gets out of PRISON.

  230. GallingGalla
    GallingGalla July 26, 2010 at 11:51 pm |

    (Jill, although I’m addressing this comment to Miss S in response a question of hers, I feel this is important to the thread overall, because of the issue of power-over relationships. Please let it through.)

    Did I get it?

    I know that Piny already answered you, and her answer was spot-on, but since you were asking me, I’ll give you my answer.

    No.

    Y’no, there’s a fair number of trans woman – most trans women, actually – who really don’t want to have to make a big deal of being trans, because they are women, full stop.

    Suppose you’re dating one and you ask her if she is trans, and she says “no”. Is she lying? Or perhaps she answers “I cannot have children.” Is she deceiving?

    Or is it possible that she just doesn’t want to be othered by having to answer yes to that question? Because once you demand that a trans woman reveal that she’s trans, you’re othering her. Why else would you ask that question? Would you ever ask a woman if she’s cis? Or, like 99.99% of cis people in this world, would you just assume she’s cis, unless you have “some reason to suspect” that she’s trans?

    I mean, why would you ask that question, if not because you (consciously or unconsciously) picked out certain things about her that match your stereotypes (created and imposed by cissupremacist society) of trans women?

    I’m sorry, but you cannot take one situation (someone who doesn’t use protection lying about whether they have an STI) and just uncritically apply it to another (cis/trans). You have to look at the power-over situation. That’s what is important about the Israeli case – that even if the non-Arab Jewish woman would not have chosen to exert her power over the Arab man, she was still in a power-over situation granted to her by the instutionalized racism of Israeli society. Similarly, when a cis person dates a trans person, they are in a power-over relationship with that trans person, whether they choose to exercise that power. Hence, expecting disclosure means something way different than it does with first example (someone who doesn’t use protection lying about whether they have an STI).

    And to piny’s point: Even a lot of binary-gendered trans folk have problems dealing with folks like me, because I’m in a category that is very unstable and unknown or poorly known to all binary-gendered people, cis or trans.

    Oh, but wait, I do have my answer.

    If I asked you if you had [a sex change operation] and found out you lied, I would find it problematic and my feelings would be hurt.

    Yep, cis privilege in the raw, folks.

  231. RD
    RD July 27, 2010 at 2:15 am |

    GG, you think there is no power-over situation with STIs? That is awfully ignorant. See my last comment for example.

  232. Grafton
    Grafton July 27, 2010 at 3:10 am |

    I’m with GallingGalla.

    The theory that people lie or withhold information under such circumstances because they feel entitled to sex is something-centric.

    It is certainly not just trans people who might lie or withhold information to avoid being othered.

    This conversation reminds me of a recent mental-illness support-group discussion that went, “When do I tell my new girlfriend that I am schizophrenic?” The questioner wasn’t withholding that information because he figured she wouldn’t have sex with him if she knew; he had no idea how she’d react. He was withholding that information because, although they were having sex, he didn’t feel intimate enough with her to talk with her about something that hard.

    In the real world, there are lots of things more intimate than sex. The fact that you are seriously considering having sex with somebody does not give you a right to every piece of intimate information connected to that person. It does not give you the right to ask intrusive questions of that person either.

    The view that a person must disclose anything that’s likely to make another person question his or her decision to engage in sex, or the softer view that she or her must honestly answer any question that other person may ask is, in itself, othering. It implies that just considering having sex with somebody gives you the right to strip them of their privacy, and put them in a situation where you can wield your privilege over them. The person expressing entitlement here is not the trans person/MI person/religious minority member/whatever.

  233. GallingGalla
    GallingGalla July 27, 2010 at 7:38 am |

    @RD: GG, you think there is no power-over situation with STIs? That is awfully ignorant. See my last comment for example.

    Yes, you are right, my example was quite poor.

    Perhaps a better example would be one person who wants children and another person who doesn’t.

  234. jenni
    jenni July 27, 2010 at 3:41 pm |

    so i am wondering what u think:

    i am a woman living in a country where i dont originate from, but ive been here long enough to fit in (doesnt matter i guess but since this is true story on my behalf except for the bar). the major religion here, which is a big deal and part of the culture etc., says that sex outside and marriage is wrong and women should be virgins when they marry. i dont practise this religion and never did. lets assume i go to a local bar… i meet a guy. he likes me, i like him (sexually and who knows what else could happen – its 1am and im not thinking clearly). he might even ask me if i am *religion here*, and ill say yes, cos he clearly has a preference… and ill say im single too, though im not. and yes i am looking for a long term relationship as well. okay so we go from the bar to a place nearby and i fuck him. i leave.

    he later finds out i am nowhere near *religion here*. and i have a husband. and i wasnt even a virgin, in case he asked me (and i lied). so, he feels REALLY upset and violated. he sues me for rape.

    should i be convicted for 18 months?

  235. Grafton
    Grafton July 27, 2010 at 3:54 pm |

    I think the problem is that people are not cluing in as to just how much that power-over situation can mean for some of us.

    It is all very well and good to say that you ought not to have sex with somebody if you don’t trust them not to harm you, but imagine if you were told you had an ethical obligation to give your bank account number and PIN to anybody you had sex with. Take a minute and think back on past partners and count the ones you’d be comfortable sharing that information with. If this hypothetical ‘share your account number and PIN before sex’ rule does not seriously and dramatically curtail your sexual autonomy, I will be quite shocked.

    For some people, information such as trans status, mental illness, the fact that they are a stealth member of a hated minority, etc, etc is a bit like an account number and PIN. That information, in the wrong hands, could be used to seriously damage them. Except it’s in many more areas of life than the bank information could affect, and the person can’t just call up the bank and have it changed. You can’t take it back.

    If information of that sort exists about you, the ‘must disclose if asked’ rule gives sex partners the power to really fuck you over, forever. In this information age, even moving to another town is no guarantee of safety after such an incident. Does being trans, or MI, or whatever, mean that a person deserves to have the Hobson’s choice of celibacy or exposure to this risk? Does having sex with such a person mean that you deserve to have that much power over them?

  236. Interesting posts, weekend of 8/1/10 « Feminists with Female Sexual Dysfunction

    [...] disclose to potential sex partners and when follows on the heels of another Feministe discussion, Rape by deception. Thomas’s post looks at issues of disclosure effecting trans women in [...]

  237. Dora Gordon
    Dora Gordon August 14, 2010 at 8:19 pm |

    Hello,

    I would like to seriously object to the author’s stated opinion. To fully articulate my argument, I’m going to start at what I think is the underlying reason for the author’s opinion, instead of responding to what she first states. Jill states that she thinks that the case is racist. And guess what? maybe she’s right. So if the victim were refusing to hire him for a job, I’d say that she needs to be prosecuted for a civil rights violation. But that’s NOT what she was doing. She was deciding whether or not she would CONSENT to sex. And for her own personal choices, she gets to use whatever factors she chooses as deciding markers. Maybe she only wants to have sex with Jewish people, or not have sex with Palestinians, or only have sex with people that have one green eye and one blue, or only have sex with people who have a twin sister named Elizabeth. I DON’T CARE what the criteria are for the female, they are her personal choices, and she can make them whatever she wants. You don’t get to say that because you don’t agree with her criteria, they aren’t valid criteria at all. In the second case mentioned, the victim’s criteria was “her boyfriend,” and since the person didn’t meet that identity requirement, it was wrong. In this case, the victim’s criteria was “jewish/not palestinian,” and since the person didn’t meet THAT identity requirement, it was wrong.

    The next point I have to make is where it shifts from “wrong” to “rape by deception.” And that point is, did the person have a reason to think that this particular issue was an identity criterion for the victim? And, given that the perpetrator volunteered false information, and also given the current cultural environment in Israel (there are almost no interracial marriages on the books in Israel), it is REASONABLE to assume that she felt this way. Maybe it’s racist for her to think that way, and she shouldn’t, but that doesn’t mean she can’t decide for herself who she consents with. You don’t get to force consensuality on her because you think she should have been consensual.

    You also don’t get to say which factors constitute the “if lying, this is rape” category for someone else. If I were blind, and racist against black people, and a black guy told me he was white and had sex with me, then that guy is a rapist. Absolutely a rapist. It would make me seriously racist, and maybe I’m an awful person, but that doesn’t mean other people can rape me as my “due.”

    Racism is wrong, and should be worked against in all ways. We should teach are children to be MORE tolerant and accepting than we ourselves are. I don’t even like the word tolerance because it implies that there’s something that needs to be tolerated. But racism as a personal choice isn’t illegal. As a business choice, or a legal/federal choice, racism is illegal. But the constitution (israeli and american) cannot and does not legislate DESIRES, only actions that harm others rights. Having sex with someone is not a right. It’s a privelidge, and one that can be given to whatever small group one chooses.

    Therefore, this case is exactly parallel to the second case, except the identity requirement is different, and in this case more controversial. That doesn’t change the fact that people get to choose their identity requirements, or that when those are knowingly violated (or when it can be reasonably suspected that they would be violated) then it is rape by deception.

  238. Dora Gordon
    Dora Gordon August 14, 2010 at 8:23 pm |

    before anyone can comment on my grammar/spelling mistakes, I would like to say that I should have written “others’ rights” and “privilege.”

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