Is it a Crime to Deceive Someone Into Sex?
A college student falls asleep in her boyfriend's dorm room bed, leaving him and his friends to continue playing video games. During the night, she awakes to the touch of her boyfriend fondling her, which soon led to sexual intercourse.
It was only after she returned from using the bathroom that she realized it was not her boyfriend in bed with her. One member of the video-playing group climbed into the bed after having too much to drink while his buddies fell asleep in another part of the room.
The woman struggled to comprehend what had just occurred. She even questioned whether it was real, but the doubt was quickly put to rest when the individual in bed with her admitted to it and was arrested by police and charged by prosecutors with rape. A jury trial ended with an acquittal.
The events in the dorm room that night and the prosecution's decision to charge the individual with rape have drawn national attention to this country's rape laws. The spotlight has shown brightest on the issue of consent in rape cases when the victim's consent is obtained through fraudulent methods.
Types of consent and intercourse by fraud
The crimes of rape, sexual assault, and other sex offenses are defined and prosecuted under the individual and specific laws of each state. As a general rule, consent - or more appropriately, the lack of consent - is an essential element to achieve a conviction.
Definitions for consent differ from one state to another, but they usually include the following:
- Consent must be through one or more overt acts or words signifying the concurrence of each of the parties to engage in the sexual acts.
- Consent must be freely given and not secured through force, threats of force, intimidation, coercion, or fraudulent means.
- The person giving consent must be capable of giving it. Someone who is intoxicated, drugged, suffering from a physical or mental disability, or under the age recognized by state law is incapable of giving consent.
Most states do not include a definition for consent in their criminal laws on rape and sexual assault. Indiana - where the rape trial took place involving the college student - is one such state that does not include a definition of consent in its rape laws. Forcing a person to engage in sexual intercourse by brandishing a knife or other deadly weapon is clearly identified as a non-consensual act in Indiana, but tricking the person into believing the offender is someone else apparently is not.
The laws vary by state and country
If one party to a sexual encounter makes a mistake about the identity of the other person, has a crime been committed? As the defense attorney for the individual acquitted of rape in Indiana pointed out following the verdict, the sexual intercourse was voluntary, and his client did nothing to encourage the victim into believing she was with her boyfriend. The male student's possible knowledge of the victim's mistake about his identity might have resulted in a conviction had the law been similar to one recently enacted in Sweden.
Sweden's rape laws now focus on giving explicit, unequivocal consent by a victim without including the element of threats or violence. The law also introduces the crime of negligent rape for situations in which the victim was not a voluntary participant. Courts and legislative bodies in other countries have also shown a willingness to address situations involving deceptive conduct on the part of an offender.
What can states do to address rape and sexual assault by deception?
Some states, such as Oklahoma, include limited versions of rape by deception in their criminal statutes. Rape may be charged under Oklahoma law when victims are intentionally deceived into believing they are engaging in sexual intercourse with their spouse. If the actual spouse participated in the deception, the spouse might be charged with rape as well. California has gone even further to address rape by deception.
The sexual encounter between the two college students in Indiana might have ended differently for the man accused of rape had they attended school in California. Under California law, the crime of rape may occur as long as the prosecution proves the offender intentionally concealed his true identity to induce the mistaken belief.