David Mack, writing for Buzzfeed News has a long article on the Tippecanoe County case in which a Purdue student was sleeping in her boyfriend’s bed when another man snuck into the bed and initiated sex with her, knowing that she thought he was the boyfriend. The Purdue student woke up and went along with it because she thought it was her boyfriend in the bed. The guy was charged with rape but was acquitted because Indiana’s rape law only prohibits sex compelled through force or threats, if the victim is mentally disabled and can’t properly consent, or if he or she is unaware that the sex is occurring. None of those elements was present here in the case of this sneak rapist. The woman wasn’t forced or threatened, she wasn’t mentally disabled, and she was aware that the sex was occurring. She was deceived as to the identity of the man who climbed into her boyfriend’s bed.
Prosecutors apparently could have but didn’t charge sexual battery which prohibits someone touching, “for the purpose of sexual gratification, ‘another person’s genitals, pubic area, buttocks, or female breast when that person is unaware that the touching is occurring.'” But, even that only potentially covers the period of time where the guy was trying to initiate sex, rubbing on her and whatnot, while the woman was sleeping. The larger violation here was that he knew she wasn’t agreeing to have sex with him; she was agreeing to have sex with her boyfriend. If it had been her boyfriend, based on subsequent events, it seems like she would have been o.k. with the initiation while she was asleep. So, it’s not even clear that charge would have stuck.
This has led to legislative efforts to address what happened here. But, there are line drawing problems. I think most folks — myself included — are comfortable declaring that what this guy did was a crime and a pretty serious one at that. But what are the outer limits? “I know your consent is not directed toward me but is directed toward someone I’m impersonating with whom you already have an intimate relationship” is definitely fair to criminalize. Opponents of defining consent in the criminal laws to encompass something like this cite fears of over-reaching government and a slippery slope.
Some of that resonates with me. Much as I trust and appreciate our local Prosecutor to exercise sound discretion, you can’t always count on the right person being in that office, so I’m a bit skeptical of the advocate in the story who “rolls her eyes at the notion that prosecutors are going to bring criminal cases against men who falsely tell women they love them to get them in bed. There are evidentiary standards that need to be met, she argues, as well as prosecutorial discretion to pursue only the most egregious cases of deception.” Relying on the tender mercies of a Prosecutor acting in good faith can lead to bad places if the wrong person is in that office. As best we can, we should define as a crime only those things we wish to be prosecutable offenses and try not to rely on prosecutorial discretion any more than we have to.
That said, if a practice is wrong, toxic, and causing harm to some non-trivial cross-section of the public, we shouldn’t be afraid to criminalize the practice simply because it’s common or even if there are going to be some grey areas in hard cases. Wrongful prosecution is always a legitimate concern, but the fact is that instances of women being sexually abused, harassed, and otherwise mistreated are rampant while the number of men wrongfully prosecuted for such abuse, harassment, and mistreatment is and will likely continue to be miniscule in comparison. Ideally, of course, you try to create a system and a culture where none of that happens, but if bad things are still going to happen to good people, we have lots of room to adjust the scales in favor of women before men are in danger of getting worse treatment in this area.
So, if the legislature proceeds, what level of deception rises to a criminal offense? Maybe criminalizing saying “I love you” to have sex is too subjective and hard to prove; but how about saying “I’m not married?” I don’t know what level of crime that ought to be, but I wouldn’t be bothered by that kind of thing being criminalized even if there currently happen to be a lot of guys running around lying about their marital status to get laid. (But, again – line drawing problems – what if it’s a committed relationship rather than a state sanctioned marriage?)
The larger cultural issue is an “all’s fair in love and war” approach to sex — mostly when it comes to men trying to have sex with women. As a guy approaching 50 who’s been married for almost 20 years, I’m not really on the front lines of this sort of thing, but it seems to me that a big part of the problem is men being taught that sexual conquest will earn them a measure of esteem among other men. (Let’s call it the “pussy grabber” effect — something that’s done, not for enjoyment of the act itself, but so a guy can brag about it to P.J. and Squi.) That’s obviously not something the legislature can address directly, but maybe defining “consent” as excluding “consent” obtained by deception would be an indirect step toward reducing women becoming collateral damage of men trying to impress other men.
I share your belief that what this Purdue student did should be a crime, and your concerns about where to draw the line. Certainly, rape by impersonation, where the perpatrator knows that the victim believes he is someone else and believed she was consenting to sex with a different person, seems like a good first step. I think it gets a bit hazier when we get into lies about marital status, or profession, or love, or any number of other things.
I think where the rape by deception claims get complicated is that the state would have to prove that the deception caused the injury, right? Suppose a case where a 35 year-old holds himself out as a partner at a large law firm when he’s really a copy clerk. After three dates and a month, the two have apparently consensual (and pleasurable) sex, but the relationship falls apart after she discovers his lie. She reports him to police, and contends that she would not have had sex with him but for his lies about his professional standing. How does a case like this interact with rape shield laws? Those laws exist for very good reasons, based on the “she’s a slut” defenses that used to be commonplace in rape prosecutions. But in a case like this hypothetical, how would the accused defend himself? Wouldn’t an accused be able to defend himself by delving into the sexual history of the victim under the “constitutional rights” exception in Indiana’s rape shield rule (412)? Does it matter if he’s a file clerk who looks like Brad Pitt or a file clerk that looks like Danny DeVito? I don’t mean to make light of or justify deeply deceitful or immoral behavior, or the sense of betrayal and invasion a woman would feel after such an encounter. But the civil libertarian in me isn’t comfortable with the alternative. If the victim’s sexual history is relevant, then in some ways the cure would be worse than the problem and would echo sexual assault cases of generations gone by. If a woman’s sexual history and standards aren’t admissible, then isn’t this a strict liability crime? I don’t know. Your last paragraph is dead on, but I don’t know to what extend the criminal code should be the solution.
Funny story, forty eight years ago. I was living with a couple of other guys. My girlfriend would come over and usually spend a couple of days there. One night we had just had sex and I got up to go to the bathroom. When I came back one of my roommates was just getting off of her! Now the room was dark, but not pitch black. My girlfriend said, I thought it was you! The problem in my eyes was that, I was clean shaven, my roommate had a huge Hippie beard!!! Just sayin!!