Rape by deception
Rape by deception is a situation in which the perpetrator obtains the victim's agreement to engage in sexual intercourse or other sex acts, but gains it by deception, such as false statements or actions, including leading the target into illusory perceptions in order to get sex. Notable cases. United Kingdom. In English law, the Court of Appeal in "R v Linekar"  3 All ER 69 73 ruled that the basis for such claims is "very narrow", ruling that refusing to pay for sexual services was a fraud not rape. Cases demonstrating the law on consent  as set out in the Sexual Offences Act 2003 include "R v Assange" (aka "Assange v Swedish Prosecution Authority") (if consent was conditional on the use of the condom during intercourse, and the condition was deliberately disregarded, that was capable of amounting to rape), "R(F) v DPP" (the sexual act was performed in a way that broke a condition agreed previously), and "R v McNally" (deceit as to gender). Three notable cases where this issue arose: United States. Massachusetts. In 2008, it was reported that a Massachusetts woman, Marissa Lee-Fuentes, unknowingly had sex with her boyfriend's brother in  the dark basement that she was sleeping in. He could not be prosecuted because Massachusetts law requires that rape include the use of force. Massachusetts State House Representative Peter Koutoujian crafted rape-by-fraud legislation in response, however it did not pass because legislators found the law to be too broad. California. On March 30, 1984, Daniel Kayton Boro called a Holiday Inn in South San Francisco. Mariana De Bella was a hotel clerk who answered the phone that morning. Boro told De Bella that he was "Dr. Stevens" and that he worked at Peninsula Hospital. Boro (pretending to be  Dr. Stevens) said that he had the results of her blood test and that she had contracted a dangerous, extremely infectious and possibly deadly disease from using public toilets. Boro went on to tell her that she could be sued for spreading the disease and that she had only two options for treatment. The first option he told her about was an extremely painful surgical procedure (which he described in graphic and gory detail) that would cost $9,000 and require a six-week hospital stay that would not be covered by insurance. The second option, Boro said, was to  have sexual intercourse with an anonymous "donor" who would administer a vaccine through sexual intercourse with her. The clerk agreed to the sexual intercourse and arranged to pay $1000 for it, believing it was the only choice she had. Boro instructed her to check into a hotel room and call him when she was there. Boro then arrived at her room as the "donor". He told her to relax and then had sex with De Bella. Boro used no physical force and his victim knowingly allowed him to have sex with her because she believed (falsely) that her life  was threatened if she did not receive this "treatment". Boro was arrested at the hotel shortly after when the police arrived after being called by the victim's work supervisor. He was charged with rape, burglary, and grand larceny under various California statutes and convicted at trial. However, his conviction for rape was later overturned by the California Court on the grounds that California lacked a law against fraudulently inducing someone into sexual intercourse. His convictions for grand larceny and burglary were not overturned, however, because he fraudulently took $1000 from his victim. The California Legislature subsequently amended the  rape statute in 1986 to include that a rape does in fact occur when a victim is not aware of the essential characteristics of the act (the sexual intercourse) due to the perpetrator's fraudulent representation that the sexual act served a professional purpose. Boro was arrested again for the same scheme three years later. This time he was convicted of rape under the revised California statute. It is believed that Boro used this scheme to rape dozens of women over many years. In Norwalk, California, on February 20, 2009, Julio Morales sneaked into a sleeping 18-year-old woman 's darkened bedroom after he saw her boyfriend leave. The woman said she awoke to the sensation of someone having sex with her and assumed it was her boyfriend. When a ray of light hit Morales's face, and the woman saw he was not her boyfriend, she fought back and Morales fled. The woman called her boyfriend, who then called the police. Julio Morales was convicted of rape under two concepts. He was guilty of rape because he began having sex with the woman while she was still asleep and, therefore, unable to consent. He was also guilty of  rape-by-fraud because he had impersonated the woman's boyfriend in order to gain her consent. However, an appellate court ruled that the lower court had misread the 1872 law criminalizing rape-by-fraud. The law stated a man is guilty of rape-by-fraud if he impersonates a woman's husband in order to get her consent. The woman in this case was not married, and Morales had impersonated her boyfriend, not her husband. Because of this one technicality, the appellate court overturned Julio Morales's rape-by-trickery conviction in "People vs. Morales" in 2013. To close  this loophole in California's rape-by-fraud law, Assemblyman Katcho Achadjian (R-San Luis Obispo) who tried to introduce a similar bill in 2011 introduced Assembly Bill 65 and Senator Noreen Evans (D-Santa Rosa) introduced Senate Bill 59. The two bills quickly passed both houses without one dissenting vote, and were signed into law by Governor Jerry Brown on September 9, 2013. Morales was later re-tried on the basis that the woman was asleep and re-convicted to three years in a state prison, which he had already served. He was also required to register as a  sex offender for the remainder of his life. Israel. A legal precedent in Israel classifying sex by deception as rape was set by the Supreme Court in a 2008 conviction of a man who posed as a government official and persuaded women to have sex with him by promising them state benefits. Another man, Eran Ben-Avraham, was convicted of fraud after having told a woman he was a neurosurgeon before she had sex with him. In 2010, a conviction of rape by deception drew international attention when it was first reported that a man deceived a woman into consensual  sex within ten minutes of their first meeting by, according to the amended indictment, lying about being Jewish, unmarried, and interested in a long-term relationship. (In later interviews, the man later denied the allegations that he lied, but such denials were not mentioned in his plea bargain.) However, it was later reported that the charge had actually been the result of a plea bargain with the defendant in what had originally been a rape-by-force case where the records were sealed by the judge to protect the identity of the victim and avoid the cross-examination of her . (The sex was consensual according to one of the judges.) The man was represented by the public defender's office, and the woman by the prosecution. Sabbar Kashur, an Israeli Arab Muslim resident of Jerusalem who was married with two children, accepted a plea bargain and an 18-month sentence on the reduced charge of rape by deception in 2010 after a period of incarceration and house arrest. Details later declassified showed that the initial charge was of violent rape, but the prosecution agreed to the reduced charge of rape by deception because of the victim's confused account and  concern at facing another court appearance. They also indicated that the woman was emotionally disturbed and had a history of sexual abuse. The court sent the victim to a mental hospital for treatment and convicted Kashur on the lesser charge. Prosecutors agreed to the plea bargain in order to spare the woman a long cross-examination that might undermine her evidence. The public defender appealed the sentence to the Supreme Court, which postponed the sentence pending the appeal and freed Kashur from house arrest. In 2012, the sentence was cut to 9 months by the Supreme Court. Transgender individuals. There  is much debate surrounding the topic of transgender people who have sex with partners who are unaware of their trans identity, and whether this is categorized as rape by deception. One argument is that if a transgender person hides their biological sex from a person who would otherwise revoke consent if they knew their true identity, it fits the definition of rape by deception in countries like the United Kingdom and Israel. However, according to an article by University of Toronto Law faculty member Florence Ashley, others say that "arguments against this criminalisation have focused on the realness of trans  people’s genders: since trans men are men and trans women are women, it is not misleading for them to present as they do," and Ashley specifically focuses on the transgender individuals' lack of malicious intent to deceive in these encounters. Still, there are limitations to this position and do not fully account for what Ashley calls the "messiness" of gendered experiences. Additionally, debate on what makes a transgender person fully transitioned factors into the conversation around deceptive rape. Some may believe post-op transsexuals to be exempt from claims of rape by deception, due to having fully transitioned sex  characteristics not noticeably different from a biological male or female.