I had the same reaction that many did to the report of the Israeli rape-by-deception case, which is that even if the guy lied, he’s not guilty of rape. Over at feministphilosophers, there has been some pushback on that, and I’ll formulate the pushback argument like this. As enlightened folk, we believe that lack of consent characterizes rape. Consent is a notorious pain in the patootie (forgive the technical term), because someone can fail to consent even when appearances suggest that they didn’t object. A 12-year-old is too young to consent; someone who fails to resist out of fear of physical harm hasn’t consented; someone who is incapacitated by a date-rape drug hasn’t consented.
Another way that apparent consent can be invalid is if the person has been deceived. If a prankster serves you a delicious brownie telling you that it’s made of chocolate, and neglects to tell you about the secret ingredient, it’s fair to say that you didn’t consent to getting high.
In this case, the woman argues that she was deceived, and if she was, her consent would be meaningless. Lack of consent means rape.
So, I’m still not convinced. I think that the difference lies in whether we read the deception as warranting the assertion, “Yes, I consented, but I wouldn’t have if I’d known the truth” or “No, I really didn’t consent, because I was deceived in such a way that I couldn’t consent.” I think that there are two categories, and that this case falls in the former category, and that to hold that this is an instance of rape, it has to be in the latter category.
My resistance is largely because describing her as giving consent only because she was deceived about his personal qualities pre-supposes that sex as fundamentally transactional. The woman exchanges sex as payment for the man’s good qualities, and if he’s lying about his good qualities, then he’s, um, overcharging and she, er, deserves a refund. (This is going nowhere good.)
The consent there is the consent typical of something like a contract. That is not an unprecedented way of understanding sex, even in this day and age (save it for marriage! no one wants a cookie with a bite taken out!), but it strikes me that to endorse this idea of rape-by-deception one also has to endorse the concept of sex as a transaction, rather than something that two people might choose to do for fun.
Otherwise, she’s just freely consented to have sex with someone she met at a club who (may have) turned out to be a liar. This wouldn’t preclude being attracted to someone for having certain qualities, or being rightfully angry if it turned out they misrepresented themselves, but I don’t think you can get to retroactively invalidating consent without building in more assumptions about sex.
That’s a first pass, at least.
The Edge of the American West 
34 comments
July 22, 2010 at 7:06 am
jazzbumpa
It’s not clear that even the “sex as transactional” assumption justifies the charge. One needs to exercise personal responsibility and critical judgment in the face of advertising. If the buyer omits appropriate due diligence, and buys the Florida swampland, shouldn’t the court just haul out caveat emptor, and render a summary dismissal?
Seriously,
JzB
July 22, 2010 at 7:15 am
dana
Yeah, I actually had and deleted caveat emptor, because it felt like blaming the victim absent more discussion and I didn’t feel like writing a long thing about historical understandings of rape (property crime, really), and its relation to consent (mostly irrelevant.)
July 22, 2010 at 7:25 am
washerdreyer
When I was talking about this case yesterday, the dividing line we came up with (basically taken from a line of cases about rape by deception) is whether the fact(s) about which someone is being deceived are facts that really go towards identity (e.g., I am my twin who you’re dating/married to), or more incidental facts (e.g., I am rich). Are there cases where that distinction plays out differently than yours between whether we read the deception as warranting the assertion, “Yes, I consented, but I wouldn’t have if I’d known the truth” or “No, I really didn’t consent, because I was deceived in such a way that I couldn’t consent.”? I’m not sure.
July 22, 2010 at 7:39 am
zunguzungu
The key seems to me the pinpointing of his ethnicity as something she has a reasonable need to know about in order to consent, the value judgment and social context that would make that particular fact relevant. After all, if a man has sex with a woman who is under the impression that he is a brain surgeon — when he is, in fact, a mere salt of the earth working class stiff — we might not be surprised if she feels upset, but the claim of not having consented because she didn’t know his class status is pretty obviously related to a particular set of assumptions about sex and its relation to money, status, and wealth. But if he deceived her about the date of his birthday — he said it was May 29th but it was really November 12th — the obviousness of the injustice has almost completely disappeared; we have no social conventions defining the relationship between birthdays and sex.
Which is why your point about contracts seems relevant: a contract can define precisely what is being exchanged and what is obligatory only by reference to a social context that gives that precision legitimacy. If you get short-changed, the contract defines how you would demand redress and how, because it takes an interaction between two private individuals and makes it the business of society at large. Courts can be involved, and social norms. Marriage as a social contract defines the duties of husbands and wives to each other because it defines sex’s place within a particular kind of social economy.
Defining a sexual encounter between two people in a bar as something society at large gets to stick its nose into is a sticky problem, since we also tend to think of casual encounters as private. But if we want to legislate about rape — and we do — there has to be some kind of way of defining what is and isn’t done. Society has to define where we draw the line in consent; if you tell someone you don’t have HIV, and you do, you should be prosecutable, IMHO; if a person has sex with his twin brother’s wife without her knowledge, that seems like rape to me. So the point that lt brought up in the last thread seems the right one: what makes this case particularly interesting is the social context that understands sex and race to be basically connected (in the way that the birthday example demonstrates sex and date of birth to not be related).
July 22, 2010 at 7:45 am
zunguzungu
Hadn’t read washerdreyer’s comment when I wrote mine. I would, though, quibble with the “class is not part of your identity” part of it, though; that seems like a reasonable line to draw, but pretty arbitrary to rest the weight of legal distinctions on. Again, it seems like there is some sense of “what society renders normative” hiding behind it and we need to acknowledge that.
July 22, 2010 at 8:13 am
politicalfootball
The consent there is the consent typical of something like a contract.
Right. And sex is not a contractual matter – except in places where prostitution is legal, I guess, but even there, the crime of failing to live up to the contract isn’t rape.
Likewise, this from zunguzungu isn’t relevant to a discussion of rape:
Society has to define where we draw the line in consent; if you tell someone you don’t have HIV, and you do, you should be prosecutable, IMHO
Prosecutable, but not for rape. The sexual part in this scenario was consensual. The hypothetical crime here is similar to a case where the perpetrator attacked someone with a syringe.
Efforts to define rape this way will, however, be a boon to the Men’s Rights movement, whose constituency will be delighted that they can now assert that they are not merely victimized by deceptive women, but actually raped.
July 22, 2010 at 8:21 am
Lurker
My country, Finland, does not consider this kind of fraudulent behaviour a rape. Instead, the following law applies (Criminal Code, Chapter 18, Section 1)
(1) If someone states that his or her name or station is other than what it actually is and if another person is thus deceived into a marriage agreement, or if someone misleads another into a marriage agreement by concealing a legal impediment to marriage or another circumstance which could cause the marriage to be annulled, he or she shall be sentenced to imprisonment for at most one year or to a fine.
(2) If also a wedding is performed or if the deceiver has sexual intercourse with the woman who was misled into the marriage agreement, he shall be sentenced to imprisonment for at least six months and at most two years or, if the circumstances are very aggravating, to imprisonment for at least six months and at most four years.
This, very much unused criminal legislation requires a “marriage agreement”. However, the legislator, in 1889, clearly stipulated that no honorable woman would consent to sex without prior marriage agreement. Thus, the victim should show that the man also promised to marry her. This was quite clearly inferred in “seeking a serious relationship”. So, she might have a case in a Finnish court, but not with a rape charge.
July 22, 2010 at 8:21 am
jazzbumpa
if you tell someone you don’t have HIV, and you do, you should be prosecutable,
Sure. But for something like reckless endangerment, or assault with a biological weapon, not rape.
The twin thing is perpetrating a hoax. I really can’t see rape in either case.
In either case, consent is given, and that should be the determinant. The deception is a different category of wrong.
IMHO, including these instances dilutes the severity or real rape, and that should not happen.
July 22, 2010 at 8:29 am
dana
The twin thing, were I to argue it, would go like this. The woman was deceived so thoroughly that she believed that she had given consent to her husband. She did not give consent to his brother, so when the brother had sex with her, he did so without her consent. That’s different from consenting to having sex with someone who turns out to have different qualities than you thought, even if they deceived you about them.
There’s a very bad joke about rigid designators in here somewhere.
July 22, 2010 at 8:33 am
zunguzungu
jazzbumpa, political football, good point.
Do you think, then, that there are situations where the argument “Even though I consented, that consent wasn’t real because x fact was misrepresented” could ever be valid? It might be that there simply is not, actually, which would make what I wrote sort of beside the point.
July 22, 2010 at 8:41 am
Anderson
So if Cecily sleeps with Jack because of her passion for the name Earnest, under which Jack introduced himself to Cecily, then she has a claim for rape under Israeli law?
That’s a bit much.
(I omit Jack’s well-known affirmative defense.)
July 22, 2010 at 8:41 am
Anderson
(Doh, “Ernest.”)
July 22, 2010 at 8:45 am
kid bitzer
there’s a very bad joke about bun burying in here somewhere.
July 22, 2010 at 9:06 am
sburnap
Doesn’t this turn adultery into rape?
Doesn’t this mean that every gay man or woman who lived in a sham marriage is a rapist?
July 22, 2010 at 9:32 am
Laurel
Dan Savage has a post about this on his blog that I think is right on. If you sleep with people you just met, you’re
Deception in bars is unethical, sure, but not surprising; and there’s a difference between ‘unethical’ and ‘rape.’ Does anyone imagine that other deceptions – about marital status, wealth, etc – would have led to prosecution? This only got prosecuted as rape because of specific cultural anxieties about the relationships between Jews and Palestinians. (The US version is an African-American light enough to pass being prosecuted for the rape of a white woman when she learns that his family is African-American.)
July 22, 2010 at 10:20 am
NM
There’s a bad joke about fucking Jews in here somewhere.
July 22, 2010 at 10:44 am
chris
@dana: The other side of the twin thought experiment is that she gave consent to the man in the bedroom with her, under the belief that he had the quality of being her husband. (In either interpretation, which suggests another thought experiment involving an invalid marriage that only one of the parties knows is invalid.) So, in fact, she *did* give consent to her husband’s brother — the man she gave consent to, on that occasion, was in fact her husband’s brother.
For an even stranger scenario, substitute Davidson’s Swampman.
July 22, 2010 at 10:46 am
dana
nooooooooo
July 22, 2010 at 11:45 am
jazzbumpa
(zungu)*2
Do you think, then, that there are situations where the argument “Even though I consented, that consent wasn’t real because x fact was misrepresented” could ever be valid?
No. One can perhaps construct some bizarre scenario that would be the exception, but I am not that imaginative. Still, the issue is consent. If you give it, based on whatever knowledge, misconceptions and assumptions you are choosing to believe, then, IMHO, you have no rape claim.
As discussed, other crimes are possible.
JzB
July 22, 2010 at 12:33 pm
politicalfootball
One can perhaps construct some bizarre scenario
I thought the twin scenario came close. dana’s argument (which dana didn’t quite endorse) seems intuitively sound to me:
The woman was deceived so thoroughly that she believed that she had given consent to her husband. She did not give consent to his brother, so when the brother had sex with her, he did so without her consent.
I do admit to having trouble finding a satisfactory way to categorically describe this deception in a way that makes it different from the Palestinian one. The victim didn’t consent to sex with someone other than her husband? Well, the Israeli woman didn’t consent to sex with a non-Jew.
I suppose I could try to define identity as being a fundamentally different sort of category than ethnicity. But gender is also a pretty basic category, the way that identity is, and I don’t think the Jaye Davidson character in The Crying Game was attempting a rape.
July 22, 2010 at 4:41 pm
Matt
The twin case is fairly close to some actual US law cases where rape was found- I don’t know if there are any with twins, but where a woman believes she’s having sex with her husband but it’s actually someone else that has tricked her (though the use of a screen or blindfold or something.) That seems perfectly right to me.
The thought I’d had is, I think, a bit different than Dana’s. If he’d gotten her to go to the movies with him, or to dinner, by saying he was Jewish and interested in a long-term relationship*, but in fact was neither, we’d not say he was guilty of kidnapping. Should sex be very different here? I don’t see it, but I understand that some might disagree. (This might be because of the ‘contract’ idea, but also because some, maybe many, people think sex is very special in some way, that it’s very deeply tied to one’s core personhood. I think that’s a terrible mistake, so don’t put much credence in it.)
*If we want to think in contract terms, if you meet someone and within a few hours at most are having sex with them in some random near-by building, I think it’s safe to say that any representations of wanting to be in a long-term relationship should be considered, in the legal term, “mere puffery”, and not a description that any rational person would take to be a valid description of facts.
July 23, 2010 at 12:11 am
Dave
Anyone for bringing racism in here? Or is that so obviously the actual context as not to be worth discussing?
July 23, 2010 at 2:49 am
dana
Worth discussing, certainly. The reason I left it out here is that the discussion over at FP was arguing that he was a rapist because he deceived her. The content was separate (though what is appalling about this case.)
July 23, 2010 at 6:14 am
Erik Lund
Lurker has already brought up the breach of promise, a traditional common law tort that seems to fit the case here better than “rape.”
I confess that I am wandering into territory where I feel somewhat uncomfortable having an opinion of my own, but battery seems implicit in what I understand to be the crime of rape. (I gather that this is why Canadian law has given up on rape in favour of degrees of “sexual assault.”)
So the question becomes at what point deceit rises to assault, and that requires us to talk honestly and sensibly about deceit in social relations, especially the most social one at all.
And that’s really, really hard. I, personally, can’t do it. When I hear it said, in all apparent seriousness, that “I didn’t know who I was having sex with, because I was wearing a blindfold,” I find myself convulsed with cynical laughter. That’s not a reaction that I want to have. It is, of course, produced by the same alternate personality that prowls the bars at night, telling impressionable women that he’s a doctor. (The best part is that it’s technically true!) But I still feel unreasonably guilty about it, even though I have no memory of it. It’s an alternate personality, after all. (An alternate personality with a motorcycle and six pack abs!)
So deceit is a tricky business. We all deceive, and are self-deceived, deceive when we say that we were deceived… Really, if we were all utterly rational and candid in all possible ways, would society be possible at all? This is why there used to be breach of promise, which at least clarified the issues. That there is no longer suggests that the Israeli court erred in reinventing the concept, and erred further in regarding it as a battery rather than a tort. And went completely over the top when it put itself between these two douchebags.
And I’m not just participating in this thread because it’s Dana’s, and she has such a nice online persona.
July 23, 2010 at 7:04 am
chris
So the question becomes at what point deceit rises to assault
I think, after thinking it over for a while, the only answer to this that I find defensible is “never”. Deceit is deceit, and assault is assault, and if later reconsideration of your consent doesn’t ordinarily have any effect, then it shouldn’t in cases of deception (including impersonation), either. Stretching the meaning of “rape” to cover things that don’t include lack of consent contemporaneous with the act itself is confusing and un-useful IMO.
Coercion and trickery are both bad in a lot of situations, but they’re bad in different ways and shouldn’t generally be confused or lumped together.
That still leaves unresolved the question of when trickery to obtain sex should be legally actionable as *something*, and when it should just be considered par for the course, and on that question impersonation maybe ought to be treated differently than falsely claiming to be Jewish or looking for a long-term relationship or interested in the other person’s interests. But successfully impersonating someone that the other person is already in a long-term relationship with is going to be pretty rare, I think, even for MZ twins (they’re not really identical and people who know them well usually have no trouble telling them apart, although I admit they aren’t usually actively trying to impersonate each other).
July 23, 2010 at 7:43 am
kid bitzer
“things that don’t include lack of consent contemporaneous with the act itself”
but isn’t the problem here that the law already holds that whether there was consent or not can sometimes be discovered only in light of facts that may be made known to the (non-) consentor later on?
and the idea that the presence or absence of consent cannot be determine solely by words said, or thoughts had, or beliefs held, by participants on the ground at a time “contemporaneous with the act itself” is not merely a weird artifact of our messed-up attitudes about sex.
it is more broadly built into the law. the same would apply to, e.g., whether a contractor entered freely and fully into a contract. this cannot be determined merely by words said or written, or thoughts or beliefs tokened, at the time of the act. ‘i hereby contract with you for the supply of one ton of cement’ can turn out not to indicate that i contracted with you for the supply of one ton of cement, if certain facts emerge later on.
approached from one point of view, it seems like it ought to be obvious, axiomatic even, that whether i am consenting right now or not is something about which i can be introspectibly infallible. i should be able to look inside, consider my state of mind, and just *know* whether i am consenting or not. who better than me? to assert that it is not even in principle open to my authoritative pronouncement–that in any given case, one can imagine facts that might defeat my say-so–seems just crazy.
and yet–i believe crazy of exactly that sort is already built into the common law, via laws on fraud and contracts, before we get anywhere near sex.
what this means is that while “deceit is deceit”, just as you wanted, is also the case that some kinds of deceit can mean that what looked and sounded like contemporaneous consent, and even felt and thought like contemporaneous consent, turns out not to have been contemporaneous consent after all.
weird shit. i don’t understand it at all. one of the many reasons it has been a huge advantage to be an asexual being.
July 23, 2010 at 12:07 pm
califury
It seems to me that in the case under discussion it is reasonable to postulate that the man was deceptive about his ethnicity because he expected “No!” if he was honest. This is a hypothetical I don’t know how to test, but if _he_ expected to be denied sex if he told the truth, then telling the lie results in his having sex with a person who _he_ thinks would have said, “No.” Unless we define rape as only consequent to physical force, this situation could reasonably be called rape. The key isn’t what the woman said or did, it is in what the man did and _why_ he did it: To have sex with a woman who would have resisted if he hadn’t deliberately deceived her.
July 23, 2010 at 12:17 pm
kid bitzer
califury, the standard you are proposing might be a *better* one than the one traditionally used (better both in being procedurally more simple to apply, and in being more just), but it sure ain’t anything like the standard that has been traditionally used.
as several comments above have pointed out, “i love you” has been very often uttered, deceitfully, for the very purposes you outline: sc. to have sex with someone who would otherwise decline. (what i termed a “but for” deceit, i.e. but for the deceit, the deceived person would have declined).
and yet–people who deceive in this way have not traditionally been thought guilty of rape. fraud, maybe; breach of promise of marriage, sometimes (with some ancillary assumptions); caddishness, oh good lord yes. but not rape.
so the question raised by the israeli case is why no one think’s it is rape when “but for” deceits of some kinds are employed, but *do* think it’s rape when other “but for” deceits are employed.
i mean–one arab guy is a little unforthcoming about his ethnicity. he’s put in ankle-cuffs for two years, and jail for another year and a half.
you want to tell me in that 36 month period, nobody else in israel is going to say “of course i love you” or “we’re separated–the divorce is pending” or any other “but for” deceit?
we could raise the bar across the board so that all those people have committed rape–and like i said, maybe that would be better. but it would be a huge, huge revision of past practice, not a way of analyzing this case to bring it into line with past practice.
July 23, 2010 at 12:52 pm
califury
The difference between “I love you,” and “I’m Arab” as subjects of deceit is that the first one is ephemeral (a state of mind) and the latter is a state of being (to the extent that ethnicity is a real thing). It doesn’t seem likely one could prove “I love you,” was a lie at the time of utterance, but it certainly is possible to prove you knew your ethnicity. A similar case of provable facts about yourself that reasonably could result in a denial of sex include your HIV status, whether you’re married and etc. Deception about provable facts begs for a criminal complaint of rape if the liar had the intent to deceive and expected a rejection if he told the truth.
It is reasonable to be concerned that some deceits are given more consideration than others. That the court decided that ethnicity is of such importance that deception about it to obtain sex is rape certainly changes the range of lies a man (or woman) can safely tell to trick another person into bed. Lies that can’t be proven are still open for use, apparently.
What is interesting to me isn’t that reasonable people can decide there is rape consequent to a lie, but rather that they think that it is reasonable for the woman to use an obviously undetectable ethnicity as a bar to rejecting a sex partner. For the argument to make sense, both the woman _and_ the man need to know that ethnic facts must be known for a proper consent. If he lied to obtain access, then he probably did know this and, therefore, criminal complaint. In other words, the rape charge stems from a society where the powerful agree, to some extent, that inter-ethnic intercourse is rape prima facie.
July 23, 2010 at 3:48 pm
kid bitzer
a reader offers sully some more (unsourced) details on the case:
http://andrewsullivan.theatlantic.com/the_daily_dish/2010/07/rape-by-deception-ctd.html#more
nothing becomes clearer. it all looks worse.
July 24, 2010 at 7:17 am
Antonio Conselheiro
The salami was halal but not kosher, an important distinction.
July 24, 2010 at 9:54 am
politicalfootball
It doesn’t seem likely one could prove “I love you,” was a lie at the time of utterance
There are two separate questions: Was it a rape? Can it be proved in court? If lying to get sex is rape, then this is rape. The second question is not so interesting.
And anyway, one could certainly imagine a set of circumstances in which “I love you” could be proved to be a lie.
But wow! As I suggested above, this sort of thing opens a lot of doors to nonsense. A woman who lies by saying “Yes, I’m using birth control” is a bad human being, but a rapist? I’d bet anything that the Israeli court wouldn’t prosecute such a woman for rape. I bet it wouldn’t even occur to anybody to do so.
There are some gender assumptions that seem to underly the whole conversation everywhere I’ve seen it, including the feminist philosophers’ site. It is not just men who lie to get laid.
July 24, 2010 at 3:59 pm
sven
To what extent are we using the law to validate (or invalidate) an individual’s mental state rather than regulate a particular activity?
two examples:
A man sleeps with a woman and later finds out she was married.
He says, “If I’d known she was married, I’d never have slept with her.” He probably feels real remorse but I doubt many people would feel a prison sentence to be a fair consequence for the deception.
A woman sleeps with a man and later finds out that the same man (by bizarre Hollywood twist) murdered her father and knowingly hid it from her. The woman would undoubtedly feel a profound sense of violation and I suspect that many people would consider a prison term in some ways justice.
I don’t question that there is vastly more harm being done in the second case but can we use nothing the victim’s perceived level of harm? Don’t we have to look at the defendant’s action and then accept both A and B or reject both A and B?
July 24, 2010 at 4:33 pm
rosmar
The prison term should be for the murder, not for the sex.