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Sunday, May 27, 2007

Despite My Better Judgement

I have debated for several weeks about what I am about to write. I have tried to suppress my feelings about this for fear of permanently alienating my female readership. My most loyal blog-friends are women. The only blogrolls that link to me are authored by women. But blogger, after all essentially means someone who just can't keep their damn mouth shut. So after much deliberation, and despite knowing that this is a bad idea, I'm going to put it into words. It has nothing to do with math or education, but everything to do with morality, humanity, and justice.

There was a much talked about case in the Massachusetts courts this past month. It concerned the definition of rape and it has been attacked by women from all ends of the political spectrum. What allegedly happened was that a man masqueraded as his own brother in order to trick his brother's girlfriend into having intercourse. Here is the court's response, as told by the Boston Globe.

The Supreme Judicial Court unanimously ruled that a judge should have dismissed the rape charge against Alvin Suliveres, 44, of Westfield, Mass., because state law has for centuries defined rape as sexual intercourse by force and against one’s will, and that it is not rape when consent is obtained through fraud.

If the Legislature wants to make sex through fraud qualify as rape, it should follow the lead of several other states and change the law, the court said.

Now let me be abundantly clear. I have no doubt whatsoever that Suliveres did exactly what he is accused of having done. I think it is despicable and disgusting and thoroughly immoral. I still don't think it is rape.

The court's opinion that the state legislature ought to follow the lead of others is correct. The law, as it stands, was not intended to cover this kind of crime. And again, it is certainly a crime. But there has to be a legal difference between forced sex and that which occurs based on conditional consent. The first is rape; the second is fraud. Any effort to expand the definition is going to be an uphill battle, and will quickly lead to the slipperiest of slopes. To define sex as rape, simply because it was the result of duplicity is to suddenly add hordes of victims and predators to the ledger. The following is a brief list of common frauds used by both genders to solicit sex.

"I am over 18."
"I am a virgin."
"I am single."
"I love you."
"I am wealthy."
"I am on the pill."
"I am a powerful movie producer."
"I have no STDs."

Some of these lies are worse than others, but they are all designed to trick someone into doing something that they wouldn't otherwise do. Would couplings resulting from these subterfuges be rapes? If so, then we had better start building a whole lot of prisons, because the rapists are about to make the drug offender population look like small potatoes.

Again, I do not advocate the use of fraud to obtain sex. I feel that this man should be punished. But since we're talking about a serious capital offense, we have to define it very strictly with no room for error or interpretation. If we expand the definition of rape to include fraud, then all of the above lies could easily lead to life in prison. Is that a decision we are willing to make?


BSB said...

Not alienated. It isn't rape. It's a whole different kind of wrong. (I particularly liked "I'm a powerful movie producer")A fairly apt legal analogy would be the person who calls in prescriptions for themsleves posing as another person, or who claims to have some symptoms that lead one to prescribe some entertaining substance. We don't call that "theft," it's "obtaining drugs by fraud." This should fall under sexual battery (an unauthorized touching of a sexual nature) the same way that operating on a patient's left leg without consent is battery, even if they consented to have the same operation on the right leg.

Andy said...

I agree with bsb. Call it sexual battery, or create a new legal category of "sex by fraud," whatever makes more sense from a legal standpoint. You can tier it like many other offenses, e.g.

Sex By Fraud (Class 1 or A)
Sex By Fraud (Class 2 or B)
... etc ...

In any case, if the offense results in the predator being labeled a sex offender, the rest of their life will be ruined, based on the current nature of sex offender laws in most states.