Rape by Deception

An Isreali judge has sentenced an Arab man to jail for pretending he was a Jew before having sex with a woman he met on the street. Read the full story here.

I am no criminal lawyer, and no expert in Isreali law, but I wonder how this will play out in a Canadian court. Some questions come to mind:

1. Will a Canadian court convict if it was established that the lie was determinative of the complainant's consent? (h/t to Howie for this question)

2. Putting legal doctrine aside, should deceptive statements trigger culpability for the crime of rape? To put this in stark terms - can one lie to get another to have sex with them?

3. Did the court conflate two different episodes of consent - consent to engage in a relationship with a Jewish man, and consent to the act of sex?

4. Is there something here that calls for a criminal law version of the remoteness doctrine in tort law? Is the consent based on the deceptive statement too remote to trigger culpability based on the act of sex, which she obviously consented to?

Comments

[David Cheifetz]

As to questions 1, 2 and 4 (your second 3).

R. v. Williams, 2003 SCC 41, [2003] 2 S.C.R. 134 and R. v. Cuerrier, [1998] 2 S.C.R. 371 - what I suspect are the leading cases.

The Cuerrier SCC reasons keywords are:
Criminal law ‑‑ Aggravated assault ‑‑
Consent ‑‑ Fraud ‑‑ Non‑disclosure of HIV
status ‑‑ Accused having unprotected
sexual relations knowing he was
HIV‑positive ‑‑ Whether non‑disclosure of
HIV status can constitute fraud vitiating
partner’s consent to sexual intercourse ‑‑
Criminal Code, R.S.C., 1985, c. C‑46, ss.
265(3)(c), 268."

Quoting from the headnote (pace):
... "To that end, principles which have
historically been applied in relation to
fraud in criminal law can be used with
appropriate modifications.

In the context of the wording of s. 265,
an accused’s failure to disclose that he
is HIV‑positive is a type of fraud which
may vitiate consent to sexual intercourse."

The accused was convicted.

There's a recent Ontario decision with these facts. X had consensual sex with Y who told her he was Z. Y and Z are twin brothers. X thought she was having sex with Z. Y was convicted of sexual assault. No valid consent.

Based on those cases, K would be convicted in Canada, too.

As to your 1st (3), I'm not sure that's a valid distinction based on the finding of fact if the consent was to sex with a person having specific characteristics. The negative corollary is consent to a person without specific characteristics: i.e, no AIDS. If the the presence of AIDs vitiates the consent in the former case, then the absence of the defined characteristic should in the former case.

For what it's worth, the twins case seems to answer your question. That's pure ID.

[David Cheifetz]

The appellate court held in the twins case that where the complainant’s consent to sex was based on it being with with a specific person, the complainant's mistake about the identity of that person, whether induced by fraud or not, meant that the complainant subjectively did not consent to the sex that occurred with somebody else.

[Marnie Tunay]

"2. Putting legal doctrine aside, should deceptive statements trigger culpability for the crime of rape? To put this in stark terms - can one lie to get another to have sex with them?"

To put it starkly, of course one can. People do it all the time:

"Of course I love you, honey. And don't worry, if you get pregnant, I'll marry you."

"It's not your money, I'm interested in, you hard-drinking has-been movie-star father of twenty, you. Hot young things always fall in love with obnoxious racist drunks twice their age."

So the only real legal question here is: How low can you go??

[Marnie Tunay]

P.S. If I'da seen that case in Canada when I was young, it would have motivated me to become a criminal lawyer. I'm drooling as I speak for a (lost forever) chance to make mincemeat of that woman's complaint in court.

For starters, he met her on the street. They had sex. Now, she's saying, in essence: "Being a Jew is so important to me, that I would never have sex with a non-Jew."

Doesn't Judaism proscribe sex outside of the marriage bond? I'm no Talmud scholar, but I'm pretty sure it does.

So how important could the doctrines of Judaism have been to our lady of the street?

Judaism is not just a culture, it's a religion, am I right? (Unless you're the Israeli government digging up old Jewish burial grounds: see here for more on that:
http://blogs.myspace.com/index.cfm?fuseaction=blog.view&friendId=264100036&blogId=537298239 )

So, if it's a question of WHICH lies are punishable in court; and it comes up that the woman's Jewish identity isn't really a critical parameter as to which men she'll pick up off the street and take home to bed...

I'm guessing the Arab defendant didn't get a jury of his peers, (ie, Arabs, who might not have automatically assumed that being Arab is by definition a BAD thing...)

P.S.S. That duck's NEVER gonna fly in Canada. "He told you he was Protestant, but he's really Catholic? Tough luck, lady. Next time, visit his church, first, Stupid. Meet his parents. His friends. BEFORE you bed him. Meanwhile, be thankful it's not a serial killer you you were dumb enough to take home."

[Stuart Hargreaves]

In the case of failing to disclose HIV status as vitiating consent to sex, the consent is vitiated because unprotected sex with a seropositive individual is an inherently dangerous act, and one can only consent to what would otherwise be assault where one has full knowledge of the risks involved... In Cuerrier, the individual was charged with assault (not sexual assault, importantly) not because they had sex, but because the partner ended up contracting HIV. The nature of the deception in the Israel case is unrelated to the risk of the activity involved -- the individual was charged with rape, not assault.

In the case of the twins, the facts and ratio are very different -- the deception there was about the existence of the second sexual partner entirely, not some element of the first partner's personality. The court found that consenting to sex with one person did not mean consenting to sex with another person, even under conditions of error. This is very different than finding that sex with one individual that was consensual is later deemed non-consensual where the error is about the belief in some element of that same individual's character.

[David Cheifetz]

SH - look at paras. 20-24, particularly 22 and 23 of the twins case. As I read them, the panel applied Cuerrier. While you are right about the narrow ratio, it seems to me that your last sentence is at odds with what the court wrote.

I appreciate that the broader statements, if they extend beyond the narrow ratio might be obiter; however, they are none the less considered statements of an appellate court. It's unlikely that a judge lower in the judicial pecking order is going to ignore them. If you don't know the case, you can find it in the usual fashion or, if you want the citation, email me at my office email.

[Marnie Tunay]

At Stuart, re Your "The nature of the deception in the Israel case is unrelated to the risk of the activity involved -- the individual was charged with rape, not assault."

Not true, unless you know something about the case that's not included in the above post or the article cited, which states specifically:

"An Isreali judge has sentenced an Arab man to jail for pretending he was a Jew before having sex with a woman he met on the street."

I like your analysis of the Currier and Williams cases, though, Stuart.

Just in passing: IMO, if you know twins well enough to be going to bed with one of them, you should be able to tell them apart.

I looked after identical twin children some years ago, and I occasionally run across them in my job and elsewhere. It doesn't take long to distinguish them.

I'm also very sceptical, therefore, of the identical twins rape complaint.

Yes, I know rape happens, quite a lot; - and there's never any excuse for it, because rape is not about getting laid - it's about power over another human being, even, in the case of rape of children, to the point of wanting to destroy or to possess the soul of another human being. It's an act of pure evil.

However, I hate hypocrisy; and false claims of rape send me around the bend - because it just muddies the waters for real victims of rape - male or female.

[Marnie Tunay]

Update: according to this, the guy was convicted of rape by deception for pretending that (i) he was a Jew; and, (2) that he was single.

http://www.edmontonsun.com/news/weird/2010/07/23/14807921.html

CNN's "legal experts in Israel" agree with me that neither act should count as "rape by deception" - even in Israel.

Ha!

[EK]

The married father of two represented himself as a serious marriage prospect. The woman consented to sex (so she claims) on that basis.

The controversial conviction (by a 2:1 majority of the District Court) has been appealed to the Supreme Court of Israel, and the man has been freed pending decision of that court.

[Eran Kaplinsky]

Haaretz now reports that the defendant was first charged with forcible sexual assault which left the complainant traumatized, bruised and bleeding. The complainant testified at trial, but facts related to her personal background and history emerged, which cast doubts on the chances of conviction. The prosecution considered the consequences of forcing her to take the stand again, and decided instead to amend the charges as part of a plea agreement with the defendant.

The story portrayed in the media was based on the amended version of the events which described consensual sex under false pretenses. The newspapers then pounced on the story of a man sentenced harshly for all the wrong reasons.