Rape by deception
Rape by deception is a crime in which the perpetrator has the victim's sexual consent and compliance, but gains it through deception or fraudulent statements or actions.
In 2008, it was reported that a Massachusetts woman, Marissa Lee-Fuentes, unknowingly had sex with her boyfriend's brother in the dark basement that she was sleeping in. He could not be prosecuted, because Massachusetts law then required that rape include the use of force. Massachusetts State House Representative Peter Koutoujian crafted rape-by-fraud legislation in response, but it has yet to pass.
In California, on February 20, 2009, Julio Morales snuck into a sleeping 18-year-old woman’s darkened bedroom after he saw her boyfriend leave. The woman said she awoke to the sensation of someone having sex with her and assumed it was her boyfriend. When a ray of light hit Morales’s face, and the woman saw he was not her boyfriend, she fought back and Morales fled. The woman called her boyfriend, who then called the police. Julio Morales was convicted of rape under two concepts. He was guilty of rape because he began having sex with the woman while she was still asleep and, therefore, unable to consent. He was also guilty of rape-by-fraud because he had impersonated the woman’s boyfriend in order to gain her consent. However, an appellate court ruled that the lower court had misread the 1872 law criminalizing rape-by-fraud. The law stated a man is guilty of rape-by-fraud if he impersonates a woman’s husband in order to get her consent. The woman in this case was not married, and Morales had impersonated her boyfriend, not her husband. Because of this one technicality, the appellate court completely overturned Julio Morales’s rape conviction in People vs. Morales in 2013. To close this loophole in California’s rape-by-fraud law, Assemblyman Katcho Achadjian (R-San Luis Obispo) – who tried to introduce a similar bill in 2011 – introduced Assembly Bill 65 and Senator Noreen Evans (D-Santa Rosa) introduced Senate Bill 59. The two bills quickly passed both houses without one dissenting vote, and were signed into law by Governor Jerry Brown on September 9, 2013.
A rape by fraud is disclosed in the memoir, "Carnal Abuse by Deceit, How a Predator's Lies Became Rape," Joyce M. Short, Pandargos Press, 2013. Ms. Short is a staunch advocate for global recognition of rape by fraud and passage of rape by fraud law. Her case involves the paramour of Susan Aberbach, the heiress to Hill and Range Songs, the publishing giant who owned a 50% interest in Elvis Presley's music as well as rights to much of the popular and country music of the 1950s and 1960s.
Many of the rapes committed by Richard Allen Minsky fit the definition of "rape by deception".
In 2010, a conviction of rape by deception drew international attention when it was first reported that a man deceived a woman into consensual sex within ten minutes of their first meeting by lying by omission about being Jewish and unmarried. This case was a plea bargain in which the records were sealed by the judge to protect the identity of the victim and avoid the cross-examination of her. The sex was consensual according to one of the judges.
Sabbar Kashur, a Palestinian Muslim, accepted a plea bargain and an 18-month sentence on the reduced charge of rape by deception in 2010 after a period of incarceration and house arrest. After Israel was widely condemned in the international press, due to perceived anti-Arab bias in the conviction, the judge unsealed the records to show that this had in fact been a plea bargain, in a case in which Kashur was originally charged with violent rape of a Jewish woman allegedly left bruised in an apartment building stairway. The court sent the victim to a mental hospital for treatment and convicted Kashur on the lesser charge. Prosecutors agreed to the plea bargain in order to spare the woman a long cross-examination that might undermine her evidence. In 2012 the sentence was cut to 9 months by the Supreme Court.
- "Rape 'by Deception' May Become A Crime In Massachusetts". CBS News. 2008-02-29. Retrieved 24 April 2011.
- If Your Neighbor Poses as Your Husband, Is it Rape?
- "Arab rape-by-deception charge 'was result of plea bargain'" Rachel Shabi, September 8, 2010, The Guardian.
- "Unravelling the Israeli Arab 'rape by deception' case" Dina Newman, September 17, 2010, BBC.
- Arab guilty of rape after consensual sex with Jew July 21, 2010, The Guardian.
- Paraszczuk, Joanna (January 27, 2012). "Court cuts Arab-Israeli rape-by-deception sentence". The Jerusalem Post. Retrieved August 23, 2012.