Deceit, consent, intent: New legislation attempts to close loophole that currently allows rape by fraud to go unpunished

Issue March 2008 By Andrea R. Barter, Esq.

Have you ever made up a fact about yourself to impress someone, hoping things will go really well and you’ll get lucky tonight? Misrepresented your income or achievements? Flirted under an assumed identity intending to score? And if you were successful, was it rape?

According to The Supreme Judicial Court and current Massachusetts law, sex by fraud or deceit does not constitute rape. But where does the “puffery” that many people would agree does not amount to a sexual assault cross the line into an act so morally offensive it should constitute a crime?

A recent Westfield case alleged that one man pretended to be his brother in order to have sex with his brother’s girlfriend. A Springfield case alleged that a pharmacist pretended to be a doctor and gave a gynecological exam. Neither case could properly be prosecuted as rape under Massachusetts law as currently written.

In reviewing the case of the brother having sex with his brother’s girlfriend, the SJC said that the law’s failure to include the crime of rape by fraud is a loophole the Legislature never corrected. Marianne Winters, director of the Everywoman’s Center at the University of Massachusetts at Amherst, noted that “The next day, legislators held a press conference saying, ‘We’re going to fill in this loophole’ and it just isn’t that easy.”

Winters is concerned about legislative approaches that are too far reaching. “I would be very cautious about legislation that inadvertently casts too wide of a net,” she said. “This is not just a case of having ‘fraud’ inserted into the rape statute and this problem will be fixed.”

But she notes that both the Westfield case and Springfield case seem to be alleged sexual assaults because the misrepresentations were directly for the purpose of getting the woman to have sex or sexual contact. “So whether by force or by that manipulation, both those instances smack of sexual assault, to me, because of the intent.”

Two former assistant district attorneys, Sen. Stephen J. Buoniconti, D-West Springfield, and Rep. Peter J. Koutoujian, D-Waltham, are the legislators who said they would file a bill that would change the definition of rape to include sex obtained through an impersonation or possibly through other frauds.

“Through the decades, as victims’ rights have evolved, so has knowledge that rape is not about force, it’s about consent,” said Koutoujian. “So I was highly offended and alarmed to have read articles in which someone had been raped and the perpetrator was known but could not be charged because the act was not committed with force, but by fraud.”

Koutoujian, who filed his bill on Feb. 27, has tried to include an element of fraudulent intent by the perpetrator in redrafting the definition of rape. “In doing so, we were cognizant of the fact that we had to be careful [defining]. We decided to use a reasonable person standard — whether there were representations upon which a reasonable person could rely.”

Simply boasting would not be appropriate for a criminal charge. But intent by the perpetrator to present themselves in a way upon which someone would rely would be actionable.

Koutoujian admits they had to be cautious about their drafting attempts. He and the District Attorneys Association, and District Attorneys Leone and Early, had to try to fine-tune the language to capture what is truly a rape by fraud while leaving out those situations that would not constitute rape.

The legislation tries to reach a fine balance between ensuring that boasting or untruthfulness during an evening about one’s accomplishments would not be subject to a charge of rape, but would still allow a charge of rape that was committed without force but by fraud.

Koutoujian filed the legislation the same day he held a press conference with Middlesex County District Attorney Gerard Leone and Worcester County District Attorney Joe Early. Koutoujian, chairman of the Joint Committee on Public Health and a former assistant district attorney, said his bill recognizes that rape involves not just the use of force, but also the lack of consent.

“Don’t focus on fraud; focus on consent,” said Wendy J. Murphy, an adjunct professor of law at New England School of Law and an advocate for victims of violence. “It’s about time we got around to codifying what rape laws are about, which is lack of meaningful consent.”

Murphy was appointed to the Governor’s Commission Against Sexual Assault and Domestic Violence during the Romney Administration. As a commissioner, she helped draft legislation that focused on what consent means, and whether it is freely given. The proposal was never acted upon.

 Murphy maintains that rather than codify what “fraud” is, legislators should draft a “rape without force” law. “It’s unconscionable not to have such a law in place,” she said. “There have been so many cases where the facts lend themselves to a criminal response, then prosecutors wring their hands, saying, ‘I want to do something, but I can’t.’ We don’t need any more examples.”

Murphy proposes creating a criminal offense of “sexual penetration without consent.” She argues that Massachusetts punishes indecent assault and battery — a nonpenetration sexual offense — when there is no consent, irrespective of the use of force. By doing so, the commonwealth has criminalized less harmful sexually offensive contact.

We “are willing to send people to jail for a nonconsensual touching of the genitals even when there’s no force, but if there’s penetration and it’s not consensual, there’s no crime: It’s actually better for the criminal to penetrate as a way of increasing the chances there will be no prosecution,” said Murphy. “The law encourages more harm by not punishing penetration in circumstances where, had there been no penetration, the same person would be charged with a felony.”

Wisconsin, Washington, Florida, Nevada and New Jersey appear to have laws that criminalize penetration without consent. For example, the New Jersey statute criminalizes “Sexual penetration without affirmative and freely-given permission of the victim to the specific act.”

“We don’t often talk much about [freely given consent] because the vast majority of cases focus on force. But,” she added, “It would be good for society to have a law on the books to ramp up respect for personal authority.”