Rape, Consent, Deception, and the Blogosphere
posted by Glenn Cohen
[Preface: As anyone who has ever taught material relating to rape in class well knows, this is among the most sensitive of subjects to discuss. Add to this the way in which typed words lose the inflections and other subtleties of spoken language, and any post on rape threatens to come off as insensitive by accident. With that in mind I have tried to write this post in as sensitive a way as I can, but I also ask the reader to bear with me if their first instinct is to take something I have said the wrong way. Instead please give it the most charitable of readings]
I have been fascinated on two levels by the recent blogospheric discussion of an Israeli Supreme Court case holding that an individual could be prosecuted for rape when he engaged in sex with a woman that was not the product of sex or coercion because he deceived her as to his religion/ethnicity (he was an Arab not a Jew) and his relationship intentions (to ‘hookup’ instead of looking for a serious relationship leading to marriage).
On the first level, I was intrigued as to why the case got so much interest (and the holding largely hostility) in the blogosphere. I think there are many reasons, but I want to put out two (related but distinct) provocative hypotheses for reaction from readers: (1) The case taps in to some long-suppressed doubts held by some reader on whether non-forced or non-coerced sex counts as rape. (2) The case disturbs because it implies that men can be raped during sex that is not forced or otherwise coerced, and while there are contexts in which many are prepared to believe in male rape (e.g., the prison context) they harbor gender-asymmetrical views of rape outside those contexts.
One level down, into the actual holding of the case, one thing I find fascinating about this area of law (rape by deception) is that it requires constructing a concept of “essential facts” for which deception vitiates consent. To try and think about this, consider the following cases:
1. Ahmed deceives Beatrice about his religion and ethnicity claiming that he was an orthodox Jew when in fact he was a Muslim Arab. (The most recent Israeli case)
2. Jon convinces Daphne he is his identical twin, Jack, whom Daphne is dating, and Daphne sleeps with him inebriated after a long night of partying. A real case along these lines in Canada had facts like these.
3. Dil deceives Fergus into believing Dil is a woman when they engage in anal sex. In fact, Dil is actually a man (inspired by this film).
4. Bree is an M to F transgender person who now passes as a woman. She leads David to believe she was biologically born as a woman when they have sex.
5. Fernando is asked by Nick just before sex if Fernando is HIV positive. Fernando lies and says he was tested a month ago and was negative, when in fact he knows he is positive. They engage in oral sex. (Imagine no HIV transmission occurs. It is a separate question whether Fernando is guilty or should be guilty of a different offense, the question here is whether Nick has ben raped).)
6. Michelle convinces Robert she has had a hysterectomy before they engage in unprotected sex. In fact it is a lie. They do not conceive a child. (For discussion of cases where a child does come into being from these kind of conception by deception cases, see notes 37 and 38 of this paper of mine)
7. Sanjay deceives Mary into believe he is a neurosurgeon, when in fact he is a garbage collector. (Apparently there is Israeli case law treating this as rape by deception too).
8. George deceives Hillary into believing he is a card-carrying member of the Democratic party. In fact he is a card-carrying Republican.
My starting intuition is that 8 is clearly not rape, and 2 clearly is. If the test for consent being insufficient is “would the individual have engaged in sex with this person but for the deception,” then all these cases including 8 ought to be rape. That 8 is not rape suggests that cannot be the test, or I would have to revise my opinion on 8. If that is not the test, what is? I don’t have an answer…but I am curious what others think both about the cases and about a differentiating principle to explain their views.