CA Rape Ruling Right – Sex By Fraud Is Not Rape in Most States

Jan. 9, 2013 - PRLog -- WASHINGTON, D.C. (January 9, 2013): The very recent California court decision, holding that a woman was not "raped" when she consented to and actively participated in sex with a man only because she believed that he was her boyfriend, is correct and in accord with the current law in most states, says public interest law professor John Banzhaf, who also notes that – contrary to numerous press reports –  the decision is not a unique one based on a statute unchanged since 1872.

        "A woman who willingly has sex with someone because of whom she believes him to be – a wealthy playboy or rich plastic surgeon, a movie producer or Playboy photographer, a guy she hooked up with last month or chatted with on the Internet, someone she once played doctor with in kindergarten, etc. – can hardly claim that she was forced to have sex against her will, the essence of the felony of rape, even if the belief is false, and even if the man actively misrepresented himself to her," argues Banzhaf.

        A rule of law which says that any man who obtains sex from a women by making a misrepresentation of his identity, his intentions, or his feelings is guilty of a heinous crime, and subject to imprisonment for life, would be contrary to the generally accepted standard that "all's fair in love and war."

         As one judge pointedly noted in a very similar case,  "It is not criminal conduct for a male to make promises that will not be kept, to indulge in exaggerations and hyperbole, or to assure any trusting female that, as in the ancient fairy tale, the ugly frog is really a handsome prince. Every man is free, under the law, to be a gentleman or a cad."

        A classic example involved the so-called "Fantasy Man" who preyed upon single women in Nashville for years.  His modus operandi was to call a woman pretending to be her boyfriend, and ask her to unlock her door, put on a blindfold, and crawl under the covers where he would soon join her in sexual acts.

        These were not isolated incidents; indeed, one of the women had blindfolded sex with the Fantasy Man twice a week for two months, believing he was her boyfriend.

        His many other victims included an international airline stewardess, several Ph. D.s and a few businesswomen, many of whom shared their bed with him on numerous occasions, and never realized that they were enjoying sexual relations with someone other than their boyfriend.

        Whatever harm these women suffered at the hands of the Fantasy Man obviously does not begin to compare with the overwhelming trauma which occurs when a woman is raped at knife point, or simply forced to submit because of the overwhelming physical strength and power of a male attacker who forces himself upon her.

        That's why the Fantasy Man would have gone unpunished for his deeds except for the fact that Tennessee has a special statute making "rape by fraud" a crime.

        California, like most states, does not have such a statute, so that women who consent to sex based upon fraud and other misrepresentations cannot seek to convict the man of rape.

        Also, contrary to many media accounts, the California decision was not based primarily upon some ancient statute which the legislature had subsequently overlooked.

        Indeed, as the court noted in its unanimous opinion, the statute has been amended several times in its 140-year history, most recently in 1993.  It was the latter amendment which gave rise to the recent apparently controversial ruling.

        The Supreme Judicial Court of Massachusetts reached the same conclusion as recently as 2007, citing a long line of similar decisions in English and American courts.  The Massachusetts court noted that its decision "is also consistent with the law in a majority of other jurisdictions.”

        If, as some are urging, the law is amended to punish anyone who obtains consent to sex by using any misrepresentations, the door would be open to prosecutions where men falsely stated  "yes I do love you," "of course I'll call," and "certainly I'll respect you in the morning."

        If any such statutory amendment is limited to fraud based only upon misrepresenting one's identity, men who falsely claim to be wealthy lawyers, movie producers, television stars or athletes, etc. to obtain consent to sex would be subject to a felony conviction.

        Even if the law were amended to apply only if a man falsely represented himself to be some other identified person, men who lured women into bed by claiming to be Brad Pitt, Justin Bieber, Peyton Manning, Michael Phelps, Anthony Weiner, Joe Biden, and perhaps even Elvis Presley would likewise be guilty of a felony.

        Prof. Banzhaf, who has won more than 100 legal actions claiming discrimination against women, who forced the Cosmos Club to take on female members, and helped to get the first women admitted to a formerly all-male state-supported military academy, notes that it’s not only men who may engage in fraud to induce others to have sex with them.

        For example, a woman lured former NYC police officer Frank Serpico to her apartment for sex by assuring him that she could not become pregnant, when in fact her only purpose was to obtain his sperm to father her child.  He was subsequently held liable for child support, even though his consent to the sexual act was obtained by her trickery, and she was not even held liable civilly.

        “Rather than trying to punish all of the ‘lines’ men (and sometimes women) use to induce a reluctant partner to agree to sex, courts and law enforcement officials might better spend their time prosecuting rapes based upon violence or threats of violence – or situations where the victim is completely unconscious or far too drunk to give meaningful consent to any sex – rather than these aberrational situations which occur only very rarely and appear to cause far less trauma.   If they are to be prosecuted at all, perhaps some offense other than the heinous crime of ‘rape’ would be appropriate.”

        “If a woman can’t even tell when she is having intimate sexual relations with someone other than her steady long-time lover, the law’s ability to protect that relationship may be limited,” says Banzhaf.

JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
2000 H Street, NW
Washington, DC 20052, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/ @profbanzhaf