The Natural, Yet Ridiculous, Next Step In Affirmative Consent

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.

Push-up bras.

I work for the CIA.

Your eyes are like pearls gleaming in the moonlight.

Spanx.

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.

34 thoughts on “The Natural, Yet Ridiculous, Next Step In Affirmative Consent

  1. Noxx

    There’s a whole nother unintended elephant in the room with this one. Imagine how this could Impact casual relationships for trans persons.

  2. Quinn Martindale

    I found a law review article covering rape by fraud:
    Russell L. Christopher, Adult Impersonation: Rape by Fraud as a Defense to Statutory Rape, 101 Northwestern University Law Review 75 (2007)

    It cites several state laws which already criminalize sex where consent is obtained by deceit.

    ALA. CODE § 13A-6-65(a)(1)
    “(a) A person commits the crime of sexual misconduct if:
    (1) Being a male, he engages in sexual intercourse with a female … with her consent where consent was obtained by the use of any fraud or artifice; or”

    HAW. REV. STAT. § 702-235
    Unless otherwise provided by this Code or by the law defining the offense, consent does not constitute a defense if:
    (4) It is induced by force, duress or deception.

    TENN. CODE ANN. § 39-13-503(a)
    “Rape is unlawful sexual penetration of a victim by the defendant or of the defendant by a victim accompanied by any of the following circumstances: …
    (4) The sexual penetration is accomplished by fraud.”

    1. SHG Post author

      I wonder whether they’ve been used, and if so, how. Given the paradigm shift in rape and sexual assault, will old benign laws take on a new, different and unintended life?

      1. Ted H.

        In which a 16 year old with a fake ID rapes a 30 year old. It’d be hard to argue de minimis for fraudulently inducing a person to commit statutory rape.

          1. Ted H.

            “You promised you weren’t going to record this.” = rape in spite of the fact that words such as”Yes,” “yeah,” and “uh huh” are emphatically uttered by both parties. Move over Prof. Franks, your law is obsolete.

      2. Fubar

        Wronged maidens today need not sorrow.
        Ancient law provides means they can borrow:
        Rape by fraud, don’t you see,
        Is as plain as can be,
        If he claimed “I’ll respect you tomorrow.”

  3. The Real Peterman

    “Imagine this: A man woos a woman to bed with tales of his riches, fast cars and a vacation home in Monaco. But he actually lives in his mother’s basement.”

    Whatever happened to due diligence?

    1. Noxx

      …however she assured him she wasn’t sleeping with him for those assets, so she has also defrauded (raped) Mr. Basement. Yay, rape for everyone! Victim equality all around!

    1. Patrick Maupin

      I just hope and pray that my wife never figures out that I’ve been fraudulently raping her for the last 28 years. Even with the plea bargain, that’s gonna hurt.

      1. SHG Post author

        And if she had merely been robbed, it wouldn’t have been awful and you couldn’t understand her feelings? This is what I have such difficulty understanding: Are women incapable of empathy for anything that isn’t a women’s issue? Death means nothing, but rape is awful? What happened that women feel compelled to flock to empathy when it’s a women with a sex crime, yet couldn’t give a damn otherwise?

        You felt the need to add this truly pointless comment, adding nothing whatsoever to the discussion, just to express your feelings. Why? This isn’t directed to you personally, Beth, but just a general gripe and you happened to be here when it struck me. Why is there “special” empathy based on identitarianism? Can’t we care about everybody, not just “our own”?

        1. Beth Clarkson

          Two days ago I was banned from the blog Love Joy Feminism for stating that in my opinion, it’s not fair for a woman to withdraw consent during the act she consented too. Well, that and a couple other comments confirming that was, indeed, my actual opinion.

          I was labeled a ‘Rape Advocate’ and summarily banned.

          I think women are as capable as men of empathy, and equally variable.

          1. SHG Post author

            Well, you won’t be banned here. Sorry to dump on you. It really had nothing to do with you, just a thing that’s been bugging the hell out of me lately, and it came out after your comment.

            It’s a real shame that Love Joy Feminism is so intolerant. That’s the problem with religions; they only want true believers. If it makes you feel any better, I’ve been called much worse.

            1. Beth Clarkson

              Ya, it sorta does make me feel better.

              It’s the accusations flung about my children that bother me the most. I try to stay in the rules, I hadn’t realized that expressing such a ‘reprehensible’ opinion was advocating rape, which is a banning offense.

              I remember, back when the Mike Tyson case was in the news, waiting on old white guys who were positively incensed by that verdict. Now I’m a rape advocate for thinking certain actions aren’t fair to men. I’m a 56 year old grandmother!

              I age a definite remembrance of the strictures of the fundamentalist church I was raised in.

            2. SHG Post author

              Any opinion that’s isn’t their opinion is “reprehensible.” In a way, it’s freeing not have to try so hard to show that you aren’t against them. Since you can’t win the battle, it’s not worth fighting. As for me, people can call me whatever they want. It changes nothing.

        2. Patrick Maupin

          And if she had merely been robbed, it wouldn’t have been awful and you couldn’t understand her feelings?

          Someone who has sex for money gets approximately the same sympathy as any other business person who has a non-paying customer (e.g. not very much because it happens all the time), minus the large discount for engaging in an unsavory enterprise.

          Which may help explain why some women seem to spend as much energy rationalizing and mentally distancing themselves and their own behaviors from prostitution as some guys do distancing themselves from homosexuality.

          Obviously the women who get themselves into this sort of situation are extremely special and more deserving of our sympathy than the common street whore. We know they are special because their pain is immense enough to compel them to accept the shame of going public with salacious accusations of poor behavior that was barely tolerated at the time because promises.

          But you! You’re not very understanding. Can’t you see how much the guys who do this should suffer? What’s wrong with you?

    2. Ken Mackenzie

      JD’s joke actually happened in England, sort of; R v Linekar [1995] 2 Cr App R 49.
      A prostitute had sexual intercourse with the defendant on the understanding that he would pay her £25. He in fact never paid and never intended to pay. It was held that the fraud did not vitiate consent as to the nature or quality of the act. The defendant’s conviction for rape was quashed.
      Note however, that he was at first convicted and sentenced on those facts, albeit to probation and community service.

  4. Ken Mackenzie

    In English and Australian law some kinds of fraud can vitiate consent; pretending to be a husband, or pretending that the sexual act is something else, such as the piano teacher’s breathing exercises in Williams. On the other hand, lies about being married (Papadimitropolous), lies about the necessity for a medical examination (Mobilio) and lies about being clear of venereal disease (Clarence) did not vitiate consent. Legislation in Queensland now means that fraud as to the purpose of the act, such as lying about the need for medical examination, now vitiates consent . In New South Wales, a lie about identity, or tricking a person into believing they are married, vitiates consent.

  5. Nigel Declan

    When will people finally appreciate that turning everything into a form of rape ultimately serves to render rape itself a less meaningful concept? The greater the number and more diffuse the acts under the “rape” umbrella, the smaller and fuzzier the distinction becomes between “rape” and perfectly ordinary and legal activities. It would be hard to fault anyone who argued that there was a movement afoot to provide women (in particular) a post hoc consent veto, which effectively marginalizes their ability to make a decision, knowing the risks, and bear the consequences resulting therefrom. The theory seems to be that because potential “victims” can’t be trusted to always make the “right” decision, their decisions simply shouldn’t be binding.

    1. SHG Post author

      It’s ironic that the “protections” infantilizes women and trivializes the seriousness of a heinous crime.

      1. Beth Clarkson

        Not to mention making liberal use of shaming as a way to keep people in line.

        I have a legal question regarding rape, but I don’t want to impose. How would you feel about a non-lawyer query in that area?

          1. Beth Clarkson

            Thanks. The issue that got me banned had to do with withdrawal of consent during intercourse. Is it legally rape if a woman consents, but then changes her mind and communicates her desire to stop to her partner? I didn’t think it was, but at this point, I’m fairly convinced I was wrong. How does the legal definition of rape deal with withdrawal of consent after the act has begun?

            BTW, I agree that it is rape if the man goes on to do things the woman hasn’t consented to. But just continuing on with what she had consented to?

            1. SHG Post author

              Any person can withdraw consent at any time, and provided the person gives the other person notice of the withdrawal of consent and the other person persists, it would be technically rape. Would it be likely to be prosecuted, no, because the proof would be enormously problematic unless the person who persisted admitted to refusing to respect the withdrawal of consent.

  6. pseudalicious

    First time reader and poster, first and last comment here: You’re great on race. You’re lousy on gender. Have you ever, um, actually read Yes Means Yes? Or, I dunno, any work on sexual violence by any feminist ever?

    1. SHG Post author

      First, the answer to [email protected]. Because it’s my blog and I say so. Because you are reading, and commenting, on my dime. Because you don’t exist, which is why you’re at my blog and I’m not commenting at yours. That makes you an asshole off the top, unless you’re hiding from the Mossad. I presume you’re not.

      Now to your comment. First, why do you think I or anyone else gives a flying shit whether you comment or not? Do you think this is an effort to seek the approval of someone who is so lacking in integrity as to hide behind a silly pseudo and can’t give an email? Do you not realize how worthless you’ve made your “opinion”? You agree with me when I agree with you, but don’t when I don’t? What sort of twisted narcissism could possibly make you think anyone cares?

      But yes, I have read “yes means yes.” I’m very familiar with it. And I’ve long been involved in feminist concerns, but real feminists, not the whiny third wave poseurs who can’t bear equality and want to be infantilized and treated like delicate flowers.

      Oh wait, now I realize why you didn’t give a name or email. See how that works? Now go find someone to whine to about how I hurt your feelings and didn’t appreciate you feminist specialness.

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