From: rpetsche@mrg.tmc.edu (Rolfe G. Petschek)
Newsgroups: talk.rape
Subject: Re: Contracts (was Re: Rape Law Reform)
Date: 4 Jan 1993 21:29:28 GMT
Organization: CWRU Physics Department
Reply-To: rpetsche@mrg.CWRU.EDU (Rolfe G. Petschek)
NNTP-Posting-Host: mrg.phys.cwru.edu

In article <1992Dec24.134611.25765@jarvis.csri.toronto.edu> flaps@dgp.toronto.edu (Alan J Rosenthal) writes:
>rpetsche@mrg.tmc.edu (Rolfe G. Petschek) writes:
>>Ok.  A man calls a woman, tells her he is a worker at the hospital at
>>which she just got some tests.  He also tells her that she is very sick
>>and will die without treatment and that there are two possible
>>treatments:  1) a painful operation involving a cost of $20,000 and 2) a
>>act which will appear to be sexual activity with a man and will only
>>cost $1,000.  They agree on the latter form of treatment, she shows up...
>
>>Generally speaking it is not rape if informed consent is possible and no
>>significant coercion is used even if a strategem, however vile is
>>employed to obtain consent.  The case above has facts for fraud, but not
>>for rape.
>
>In what sense was her consent "informed consent" to the sexual activity?  She
>believed that it was medical treatment rather than sexual activity going on.
>There's no way this is informed consent.  And in what sense is it not coercion
>if you tell someone they're going to die if they don't participate?  (If
>necessary, replace "die" with "die or have to spend $20,000".)

I apologize, I have been unable to find this case in the source in which
I thought I had read it.  I am throughly confident I did not make it
up.  I am reasonably confident I read it in *some* law text and that it
was a reversal of a lower court ruling by some level of appeals court,
hence the possibility of reasonable arguments either way should not be
surprising.

It is not necessary that there be no informed consent: a more stringent
test is required: that informed consent be impossible.
(this is really just my summary of the
law, not the actual law) e.g. there must be no condition (reasonably
known to the potential offender) either temporary or permanent which
makes informed consent impossible.  The woman herein was in posession of
her senses, not imprisoned, adult and competent, if 
somewhat gullible.  Therefore informed
consent to sexual activity was possible.  The reasoning of the law seems
to be that if informed consent is possible then, absent coercion a
potential victim who does not consent will resist enough to make unreasonable
coercion necessary to enforce sexual activity, unless this activity is
relatively harmless to her/him.  This seems to me
reasonably to conform to (a) the rights of the accused and (b) likely
damage to the victim.

"Coercion" is again a summary, but I have to say that I have
difficulties with this one too.  In the Ohio law there the words are;

 (1) The offender knowingly coerces the other person to submit by any
means that would prevent resistance by a person of ordinary resolution.

As a jury member I could see fitting the above facts into this statement
of law.  On the other hand I suppose that there
are reasonable tactics on the part of the woman which would obviate 
this coercion e.g. asking for a second opinion, requiring
more documentation from the "physician" etc.  Such reasonable other
options seem to me important in assessing the nature and
unreasonableness of the coercion, and the nature and kind of likely or
anticipated damage to the victim.

I also feel (possibly wrongly) that the above facts are less damaging
than typical facts of rape (really sexual battery), rather in the way
that facts of fraud or theft (obtaining money by trickery, deception or
in the absense of the owner) than facts of extortion or robbery (obtaining 
money by unreasonable coercion, force or threat of force) if the
amounts/activities involved are similar.  This seems to me an important
distinction (and is an important distinction in criminal deprivation of
property) and possibly there should be a set of crimes ?Criminal
seduction? which is roughly "obtaining
submission to sexual activity by unreasonably vile trickery", less
serious than rape (or even sexual battery).  I would probably support a
reasonably written law making the facts above e.g. a fourth degree
felony or first degree misdemeanor and have little difficulties with
making false promises of marriage to obtain such submission a
misdemeanor with various gradations for lessor promises.  This does not
alter the fact that I believe, even if I can not support this with
either a reference or anything but somewhat remembered arguments, that
sexual activity by most vile deception is, generally speaking, not illegal 
in this country.

I am not an attorney and this is not legal advice.  If you take it as
such you are a blithering idiot.  Legal advice should be obtained
directly from a professional.
--
Rolfe G. Petschek			Petschek@cwru.bitnet
Associate Professor of Physics		rgp@po.cwru.edu
Case Western Reserve University		(216)368-4035 
Cleveland Oh 44106-7079