Consent and Rape by Fraud Legislation

Dave Bangert, writing for the Lafayette Journal & Courier, has an article about introduced bills that might address the situation at Purdue where a guy had sex with a woman after climbing into her boyfriend’s bed where she was sleeping, causing her to believe it was her boyfriend. (I wrote about a Buzzfeed article on the subject a month or so ago.)

The first is HB 1489 introduced by Rep. Errington concerning rape and sexual battery. The main thrust of this bill is to define “consent” and add the concept of lack of consent to the rape and sexual battery laws. Currently, rape requires sexual intercourse where the person is compelled by force or is mentally incapable (e.g. unconscious or significant mental disability) of consent (which is undefined under current law). Under the new law, intercourse without consent would be rape and touching for one’s own sexual gratification without consent would be sexual battery. The legislation defines consent as follows:

Sec. 57.7. “Consent” means a free, voluntary, knowing, and mutual agreement to engage in a specific sexual act or contact, including positive and affirmative cooperation in words, act, or attitude pursuant to the exercise of free will. Consent may be withdrawn at any time, and any expression of lack of consent, by words, act, or attitude, means that consent does not exist or has been withdrawn. The: (1) existence of a current or previous dating, social, sexual, or marital relationship by itself; or (2) manner of a person’s dress; does not constitute consent. Submission under the influence of fear, deception, coercion, or surprise does not constitute consent.

I’d defer to the prosecutors and the defense attorneys as to how this would actually play out in criminal prosecutions, but I agree with the general concept. Defining “consent” in the context of the criminal law such that it survives a vagueness challenge strikes me as tricky. (Courts tend to review the language of criminal statutes more closely because it involves the power of the government to take away the liberty of its citizens.) As such, I’m not sure I’d include “free” in there because I don’t know that it carries any freight not already covered by “voluntary.” I’m also not sure I’d include “mutual” because, do you really care if the offender is part of the agreement? It’s the agreement of the person on the receiving end of the action that you’re worried about.

I’m also a little concerned by the change of words in the middle. Up top, it says “consent means agreement.” But then, at the end, you say “submission under the influence of fear, deception, coercion, or surprise does not constitute consent.” So, you’ve switched from talking about agreement to submission. I’m not sure whether as a practical matter that switch in terminology would cause mischief, but that’s the kind of thing I worry about when I’m drafting legislation. And, of course, there are the line drawing problems that detractors of consent legislation have raised. Some is kicking up dust because they don’t want things to change, but some is worth discussion — e.g. if he says “I love you” but he really doesn’t, does that constitute deception which turns the act into criminal behavior? Should it?

The other is bill is HB 1584 which seems aimed more directly at the Purdue incident. It adds to the crimes of rape and sexual battery intercourse or sexual touching where “the person knows or reasonably should have known that the other person believes that the person is the other person’s spouse or significant other. “Significant other” means “a person with whom someone has a dating relationship or an ongoing personal relationship. The term ‘ongoing personal relationship’ does not include a family
relationship.” I guess my problem with this is confining the crime to spouses or significant others. It seems to imply that rape by deception is more or less o.k. if you’re impersonating someone the victim didn’t know very well.

However this plays out, I did like Rep. Campbell’s comment at the end of the Bangert article:

“I don’t know if this bill or any other like it will be heard in committee,” Campbell said. “If it doesn’t, this is something we’ll keep pushing for. No one should have to go through what (Finney) went through. It’s a crime. Indiana should say so.”