SEPTEMBER 2010 UPDATE: This case is much more complicated than previously reported. I think that the theoretical arguments about “rape by deception” hold true here; the facts of this specific case, though, have been proven much different than represented below. Please note that it appears this wasn’t “rape by deception” so much as forcible rape, and the “rape by deception” ruling was part of a plea bargain.
This story about an Arab man being convicted of rape for having consensual sex with a Jewish women is getting a lot of play. Basically, the man said he was Jewish when he wasn’t, the woman had sex with him believing him to be Jewish and a potential romantic partner, and when she found out he wasn’t she filed a criminal complaint for rape and indecent assault. He was sentenced to 18 months in prison. 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.”
“Rape by deception” or “rape by fraud” can certainly be legitimate. Take, for example, this case, where a woman consented to sex with a man who she believed to be her boyfriend but was actually her boyfriend’s brother (and the brother knew about the mistaken identity). She did not consent to sex with the boyfriend’s brother. The sexual act was consensual insofar as there was no force involved, but it was not a consensual act with that person; and the man involved knew what he was doing and intentionally had sex with someone who was clearly not consenting to have sex with him. The court in that case held that it wasn’t rape, since there was no force — a decision that I think is wrong.
In another Israeli case, a man was convicted of rape by deception for coercing women into sex by pretending to be in a position where he could help them with their social welfare benefits:
In 2008, the High Court of Justice set a precedent on rape by deception, rejecting an appeal of the rape conviction by Zvi Sleiman, who impersonated a senior official in the Housing Ministry whose wife worked in the National Insurance Institute. Sleiman told women he would get them an apartment and increased NII payments if they would sleep with him.
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.”
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. Point being, there are good reasons to have rape by fraud or rape by deception laws on the books, and we shouldn’t write off the whole concept.
But this latest case is different. The woman did consent to sex with that man. Did he either mislead or possibly lie about some aspect of his identity? Yes (although it’s not clear if he lied and said he was Jewish or just failed to disclose he was Jewish when he knew or should have known that she assumed him to be. He is also married, and apparently either lied about that or failed to disclose it). Is it pretty clear that he’s a huge jerk? Absolutely! But being misled about someone’s ethnicity does not remove the ability to consent. I’m sure she was mad — I’d be mad if I had sex with someone who told me they were a pro-choice feminist lefty when in fact they were an anti-choice religious fundamentalist. But being lied to about things like your religion or ethnicity or belief system should not translate, legally, into a sexual assault charge. There may be justifiable feelings of violation and of course the woman in question should be able to define her experience however she chooses, but a legal standard that allows one to be prosecuted for rape because they concealed or lied about some aspect of their life is very troubling.
Also, in this case? Very racist.
There are also other issues at play when it comes to rape by fraud/deception. There have been cases where people with HIV have been prosecuted for rape by fraud because they did not disclose their status to their partners; those laws, too, have been used simply to target HIV-positive people. And while I have not heard of a case where a trans person has been prosecuted for rape by fraud for having consensual sex and failing to disclose their history, trans people have been civilly sued for fraud simply for publicly identifying as their gender. I wonder what this case could mean for trans people, who even after being murdered are often vilified for allegedly not adequately disclosing their entire history, and whose murderers too often get off on bullshit defenses of “panicking” when they realize they are with a trans person.
In the aftermath of this decision, there’s been some writing around the interwebs about how rape by fraud is always bullshit, and haha I’ve lied about being 5’4″ when I’m actually 5’2″, so am I a rapist? It’s particularly unfortunate that this case is being used as fodder for the proposition that women lie about rape. To be clear, I am not suggesting that the woman in this case lied. Rather, I’m arguing that the Israeli criminal justice system made a serious misstep here; that the man should have been neither prosecuted nor convicted; and that this case creates a series of potential problems.
The reality is that there are certain circumstances where rape by fraud is a legitimate claim. This, though, is not one of them, and opens the door to even greater abuses.
Similar Posts (automatically generated):
- Some thoughts on “sex by surprise” by Jill December 6, 2010
- Rape survivor prosecuted by Jill August 8, 2007
- The Morality of Rape by Jill December 5, 2005
- Maryland Court Rules That No Actually Means No by Cara April 17, 2008
- When is rape at gunpoint not rape? When it’s “theft of services.” by zuzu October 16, 2007