A pervasive problem in discussions about rape and sexual assault is that the words are thrown about with reckless abandon. When words are untethered to definitions, it’s impossible to know whether it’s a forcible gang rape or an undesirable guy on the street saying “hi.” The flavor du jour is affirmative consent.
Aha! Finally, a word with a deeply rooted definition in law: Consent. Consent is knowing, voluntary and intelligent agreement. A bill has been introduced in the New Jersey legislature to put this to the test:
Earlier this month, state Assemblyman Troy Singleton (D-Burlington) introduced the bill (A3908), which would create the crime of “sexual assault by fraud,” which it defines as “an act of sexual penetration to which a person has given consent because the actor has misrepresented the purpose of the act or has represented he is someone he is not.”
The impetus was a woman, Mischele Lewis, who was scammed by a guy, to the tune of $5 grand. Not nice at all, but problematic as crimes go since she gave him the money because he lied to her. While this seems as if it should be covered by New Jersey’s version of larceny by false pretense, prosecutors apparently couldn’t make it work.
“I truly believe that we have to look at the issue of rape as more than sexual contact without consent,” Singleton said. “Fraud invalidates any semblance of consent just as forcible sexual contact does. This legislation is designed to provide our state’s judiciary with another tool to assess situations where this occurs and potentially provide a legal remedy to those circumstances.”
Whether this is what Singleton “truly believes” or not isn’t important. His point, that fraud invalidates consent, is not merely rational, but well grounded in law. Happy so far? Be careful what you wish for, as it just might happen.
Lawyers are trained to push a notion to its logical extreme to test whether it will withstand scrutiny. The question isn’t whether a law will prevent a particular evil, such as aid the victim of theft, Mischele Lewis, but what else it will do as it plays out in the ordinary course.
Consider the potential universe of actionable lies that would invalidate consent, and give rise to rape:
I love you.
I work for the CIA.
Your eyes are like pearls gleaming in the moonlight.
I’m on the pill.
I was checked for STDs and I’m clean.
Well, you get the idea. Our world is replete with lies, some small and some not so small. Would the potential for absurdity be salvaged by the maxim, de minimis non curat lex? Care to bet your freedom on what some prosecutor or judge thinks is de minimis? But the exercise of prosecutorial discretion will spare us from such ridiculous extremes? Experience has proven otherwise. Worse still, experience has proven that laws open to abuse will be deliberately used to get a person the government believes “needs getting,” and a law like this is ripe for abuse.
It will prove easy for some to draw a line where they believe it ought to be drawn, but the law does no such thing. Nor, frankly, does the law care what I think is reasonable or what you think is reasonable, whether we come out the same or completely different. We all have our personal levels of reasonableness, but where we think the line should be has no bearing on what the law says is the line. And the law says fraud is fraud.
Perhaps the solution is to put a price tag on lies, such as a lie that results in a $100 loss is a crime, $500 a felony, etc. But then, the price of a decent meal in Manhattan can meet that threshold. And the cost of an abortion or medical treatment will clearly meet the level of a very serious felony.
More to the point, this is about rape by fraud. Should rape be subject to a dollar limit?
We’re in the process of crafting a sexual sinkhole so that no microaggression goes unpunished. But in the process, one law has been largely ignored or denied: the law of unintended consequences. In attempting to micromanage sexual relations, as hurt emotions are elevated to the level of objectively discernible physical harm, we refuse to consider how these adored concepts will ultimately play out and what havoc they may cause.
The irony here is that the New Jersey law is nothing more than the natural flow of the current trend toward expansively criminalizing the relationships between people. As crazy as it might seem, it makes complete sense. Perhaps there is a doctrinally fair line to be drawn that will distinguish the lie that converts sex to rape, but if so, it’s not readily apparent. And without such a line, the potential for disaster is clear.