Sexual Assault and the Evolution of Modern Law

tt60.jpgRape is a heinous criminal act. A perpetrator of such a despicable crime deserves public scorn and punishment to the fullest extent of the law.  New Jersey’s rape statute contemplates a variety of factors, including the age of the victim, the victim’s relationship to the perpetrator and the level of injury sustained by the victim, which contribute to the seriousness of the offense and the degree of punishment. What is not explicitly accounted for in New Jersey’s statute, however, is whether sexual intercourse achieved by means of fraud or deceit is appropriately titled as rape.  My proposal, A3908, is designed to engage that conversation.

At first blush, it is tempting to make light of this idea, because many of us have perhaps engaged in a minor "embellishment" about ourselves to woo a potential mate. But, intercourse achieved by means of fraud is a very different and profound violation of an individual.  And yet, determining whether to criminalize this type of conduct is a difficult and uniquely challenging area of the law.

Academics and legal scholars rightly recognize and debate the tension between establishing a crime of fraudulent enticement and unintentionally criminalizing “old fashioned seduction,” as described by J. Richard Broughton in his piece titled, The Criminalization of Consensual Adult Sex after Lawrence. Many people mistakenly believe that rape must involve the use of force.  In fact, in New Jersey, and in many other states, the use of force is not required to convict someone of sexual assault.  Rather, sexual assault is defined simply as sex without consent. If lack of consent is the critical element of the alleged crime, is it really that far-fetched to suggest that sex that is achieved by fraud or deception should also be punishable under our sexual assault statute?

The Modern Penal Code, one of the most important developments in American law and perhaps one of the greatest influences on American criminal law since it was completed states that, "consent is ineffective when induced by force, duress, or deception."  This notion is buttressed by the fact that the court system, in almost every area of the law, has consistently ruled consent to be voided whenever duplicity or deception is used to acquire said consent. Why should this basic tenant of our justice system not hold true when the deception involves the consent one has given to their body? This is precisely what my proposal seeks to clarify:  The bill would expand the penalties for aggravated sexual assault to include an act of sexual penetration that is committed by fraud.  

Now, let me be very clear here. EACH of us must exercise good judgment when it comes to selecting intimate partners. And, I believe that any discussion on a proposal of this nature must also factor in one’s personal responsibility to seek the truth about a potential partner. That is why any proposed law on this topic must include a "reasonableness standard,” which should be consistent with the current New Jersey criminal code, as a means of qualifying the types of offenses that would appropriately lead to prosecution. This is born out in the proposal by affording the judicial process the ability to dismiss de minimis actions from prosecution. Additionally, under the proposal actual harm must result to the victim.

I came to sponsor this proposal as a result of a case brought to my attention by one of my "bosses,” Florence Township resident Mischele Lewis. Mischele was a victim of this type of deception; her case has been well documented and stories about it can be found online.

Before I introduced this proposal, my staff and I devoted extensive time to researching the issue and talking with Mischele and others about how to move this idea forward.  And, surprising to some perhaps, we found that there exists a rather large and diverse volume of case history involving individuals' use of fraud in accomplishing sexual intercourse. Some of these cases date back to the 1800s (Moran v. People of Michigan, 1872) and most fall into distinct patterns, as noted by Cleveland-Marshall College of Law professor Dr. Patricia J. Falk. Falk opined in a 1998 Brooklyn Law Review submission titled, Rape By Fraud And Rape By Coercion that "cases of rape by fraud include: (1) fraudulent treatment, (2) fraud as to the defendant's identity, (3) sexual scams, (4) sexual theft, (5) abuse of authority and (6) sexual extortion." 

Moving forward, the crux of this debate centers on what premium we place on the concept of consent in cases of sexual assault. There are two primary consent standards used in law throughout every jurisdiction in our country: global consent and knowing and voluntary consent. Under the global consent provisions, which New Jersey and several other states adhere to, deception renders the victim’s consent legally ineffective.  As detailed by Professor Russell and Kathryn Christopher in their aforementioned submission on this topic, "…under these global consent provisions, the requisite type of deception or fraud is without limitation....Therefore, inducing the victim's consent by deception or fraud renders the victim's consent legally ineffective and may subject the perpetrator to liability for rape by fraud."

Multiple states have adopted statues to address this gap in the law. Some have fashioned narrow applications related to specific occurrences, while others, like Tennessee, have chosen a broader approach.  Similarly, courts have found fraud, in the context of sexual misconduct, to be criminal in various cases. See People v. Whitten (Illinois), State v. Mitchell III (Tennessee) McNair v. State (Nevada), State v. Tizzard (Tennessee), State v. Batts (Tennessee), and State v. Leiding (Minnesota).

Let me state emphatically and clearly that by NO means is this proposal intended to – nor does it - minimize the existing penalties associated with rape. It merely supplements existing rape law to enable prosecutors to go after individuals who engage in this type of deceptive behavior. Moreover, as this idea winds its way through the legislative process and more individuals engage in conversation around this concept it will continue to be refined. I welcome those opportunities as we seek to strike a balance between truly egregious acts that cause harm and merely “caddish” behavior.

Think about this, if it is a crime to deceive individuals out of their property, how can it be lawful to deceive them out of their bodies? Should the law afford less legal protection to a person’s body than it does to that person’s property? That’s my take. What’s yours?

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