Flutterby™! : fraud != force?

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fraud != force?

2007-05-14 15:29:44.956365+00 by Dan Lyke 7 comments

Wow. One of the tenets of my personal philosophy is that fraud is coercion is the use of force, that if you obtain something through lies it's somewhere along the same continuum as taking something at gunpoint. Apparently, Massachussets law disagrees: Court rules sex through use of fraud is not rape:

The Supreme Judicial Court unanimously ruled that a judge should have dismissed the rape charge against Alvin Suliveres, 44, of Westfield, because Massachusetts law has for centuries defined rape as sexual intercourse by force and against one's will, and that it is not rape when consent is obtained through fraud.

Hopefully Massachussetts legislators will rectify this.

[ related topics: Sexual Culture Law Current Events Philosophy ]

comments in ascending chronological order (reverse):

#Comment Re: made: 2007-05-14 16:57:58.407779+00 by: ebradway

So the old joke "I didn't know I was raped until the check bounced" doesn't hold for Massachusetts.

Dan, do you mean to say that couples should sign "Pre-coital Agreements" laying out the terms under which they are consenting to sex? In this case, the girl was "tricked" into thinking it wasn't her boyfriend. At what point did she realize this - only after they had had sex? C'mon.

As you are aware, I'm an ardent advocate of feminism and womens' rights but where do we draw the line on fraudulent sex as rape? What if a girl gets upset the day after and figures that since you lied about your age to buy her a drink, then you used fraud to rape her?

#Comment Re: made: 2007-05-14 17:59:45.860254+00 by: petronius

I used to think that those Penthouse Forum letters were fake, until I read the facts of this case.

#Comment Re: made: 2007-05-14 19:11:46.822832+00 by: Dan Lyke [edit history]

Admittedly I'm making my judgement from a news article, and not from having read the actual decision, but it sounds like the decision was based on the law, and not mitigating circumstances from the facts. If this were an issue of "At what point did she realize this...?", then the question is not a matter of law, but a matter of fact, and this appeal was based on law.

So this specifics of this are not a "he said/she said" situation, the jury found that she had every reason to believe that the accused was someone else.

But, to the larger question: Despite the various back-and-forths on this, I think it is one where the society could use more discussion. Would people be as anxious to use:

...to have and to hold from this day forward, for better for worse, for richer for poorer, in sickness and in health, to love, cherish, and to obey, till death us do part, according to God's holy ordinance; and thereto I give thee my troth.

If they knew that those words were taken under oath and considered to be binding?

A little more seriously, some states have a "cooling off period" for various sorts of contracts, some don't, and I think it's probably a bad idea for sex: getting drunk and not being able to fuly evaluate the proposition being offered should have its consequences. On the other hand, rape clearly occupies a separate space in our legal structure because of its sexual nature, and because sex is connected to reproduction. So if, legally, we're going to treat sex as more than kidnapping then, yeah, maybe we are going to have to start asking for signed consent forms.

But I'm not at all averse to the notion that we need more explicit contractual negotiations.

Petronius: That got an out-loud laugh out of me.

#Comment Re: made: 2007-05-15 05:31:58.926882+00 by: crasch [edit history]

All I gotta say is make sure you Know Your Real David Cross From Your Fake David Cross

#Comment Re: made: 2007-05-15 15:57:03.625899+00 by: ebradway

What is interesting about extending the concept of rape to fraud is that it makes rape more of a possibility for men.

Say you get involved with a woman only to find out she was married. You could charge her with rape because she defrauded you.

#Comment Re: made: 2007-05-15 16:07:30.312878+00 by: Dan Lyke

Huh, that leads to some interesting possibilities because if rape is distinguished from kidnapping because of the issues of reproduction, then, yes, men could be considered raped if a woman gets pregnant under false pretences...


Ziffle, you wanna weigh in on this one?

#Comment Re: Fraud and rape made: 2007-05-15 20:23:41.988212+00 by: m

  1. This is not a ground breaking ruling, but rather established law. The wretch who sneaked into the woman's bed was unfortunately not, the first to come up with this practice.
  2. How can a person not know that the person having sex with them is not their regular partner? Sound, smell, body feel, sexual technique and so on. The woman was apparently not asleep or otherwise unconscious, because that would have been rape in any State I know of.

But fraud and sex are problematic. If a man can untruthfully convince a woman that he is the President of the US, which makes him attractive enough for her to sleep with him, should that be rape? That he is a military hero? That he is wealthy? If a woman uses a padded bra, or a man stuffs his shorts with a sock, is that fraud? Makeup? Toupee?

Not all behavior that is repugnant is illegal, nor should it be.