The Massachusetts Supreme Court has made a ruling in the odd area of law concerned sex by fraud. Here is a media account of the ruling:
A woman who had sex with her boyfriend's brother in her darkened room late one night claimed she was raped, saying the man tricked her into the act by impersonating her boyfriend.
But Massachusetts' Supreme Judicial Court disagreed Thursday, citing a half-century-old state law that says it is not rape when consent to sexual intercourse is obtained through fraud or deceit.
The high court said the state's rape law defines rape as sexual intercourse compelled "by force and against (the) will" of the victim. The court cited a 1959 ruling it made in another case in which it found that fraud cannot be allowed to replace the force required under the law.
The SJC noted that the state Legislature has had "ample opportunity" to change the rape statute to include fraud or deceit, but has not done so.
"Fraudulently obtaining consent to sexual intercourse does not constitute rape as defined in our statute," the court said.
While this ruling may shock some people, it is not unusual given prior cases on the issue. Here is what Jeralyn at TalkLeft had to say:
Is that rape? The Massachusetts Supreme Court says no. Sex by fraud and deceit that does not involve force is not rape. The state's rape law requires force.
Victims rights groups will be upset by the decision. I think it is the correct legal ruling. All the legislature has to do is change the law if it thinks sex by trickery should be punishable as a sexual assault.
I agree that the legislature should fix the problem to make the law clear. However, I've also thought that some sex-by-fraud cases are still rape under existing statutes. Sex by fraud where a man lies about some aspect about himself (being a billionaire, for example) clearly doesn't fit into the current statutes (and there are good reasons for not trying to criminalize that area of conduct). However, in a case like the one before the Massachusetts Supreme Court, I've always felt that one can argue that consent was never given because consent was actually being given to another person. These confusion of identity cases seem like a reasonable fit under existing rape laws. I haven't read the opinion yet to see how the court handled that discussion. With that being said, I always find it helpful to not treat all sex-by-fraud cases the same as certain fact patterns seem hard to distinguish from "rape."