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"Rape By Fraud, Deception, Or Impersonation - An Addition To New York's Penal Law: Rape In The First Degree Statute" by Daniel J. Slomnicki

Rape By Fraud, Deception, Or Impersonation - An Addition To New York's Penal Law: Rape In The First Degree Statute

by Daniel J. Slomnicki


The crime of rape by fraud, deception, or impersonation occurs in the following way: the perpetrator tricks a victim into having sexual intercourse. The classic case is where a perpetrator impersonates a victim's spouse and convinces the victim to have sexual intercourse. The catch is that the victim believes this perpetrator is his or her spouse, and further believes that the sexual intercourse is with his or her spouse, not this perpetrator. There has been an ongoing struggle and debate for more than a century on whether accomplishing sexual intercourse by means of fraud is a crime.

New York does not have a crime of rape by fraud, deception, or impersonation. In fact, 27 states do not criminalize sexual intercourse obtained by fraudulent means. Furthermore, such a case has not been decided in a New York courtroom since 1994. Nevertheless, this paper argues that it is time for the New York legislature to act. It is time for the New York legislature to finally adopt an amendment that makes it a crime in the state of New York for a perpetrator who obtains sexual intercourse by fraudulent means. The New York legislature should act now and follow the leads of the many jurisdictions that already criminalize rape by fraud, deception or impersonation.


A. Sex Offenses in New York

In the State of New York, sex offenses are criminalized under Article 130 of the Penal Law. An element in every sex offense is that a "sexual act was committed without consent of the victim." See N.Y. PENAL LAW § 130.05(1) (2013). New York Penal Law §130.05(2) states that a "lack of consent" can result from: (a) "forcible compulsion"; (b) "incapacity" of the victim to consent; or (c) for "sexual abuse or 'forcible touching,' in addition to forcible compulsion or incapacity to consent," when "the victim does not expressly or impliedly acquiesce in the actor's conduct"; or (d) for third-degree rape and third-degree criminal sexual act, "in addition to forcible compulsion" when "the victim clearly expressed that he or she did not consent to engage in such act, and a reasonable person in the actor's situation would have understood such person's words and acts as an expression of lack of consent to such act under all the circumstances."

Within Article 130 of the Penal Law are many kinds of prohibited sexual activity. These activities include: sexual intercourse, oral and anal sexual conduct, and sexual abuse by sexual contact (the touching of a person's sexual or intimate parts for the purpose of sexual enjoyment), or by the insertion of a "foreign object" in another's vagina, urethra, penis, or rectum. A person who engages in this conduct, without the other person's consent, commits a crime.

New York criminalizes rape under three different statutes: rape in the first degree, rape in the second degree, and rape in the third degree. Rape in the first degree adopts the traditional definition of rape. The statute prohibits "sexual intercourse with another person: (1) by forcible compulsion . . ." See N.Y. PENAL LAW § 130.35 (2013). The element that the sexual act was committed without the consent of the victim is also included. See N.Y. PENAL LAW § 130.05(1) (2013).
In addition to the traditional definition of rape in the first degree, the New York legislature has also enacted various statutory rape laws.

Traditionally, the act of rape was viewed as a crime of violence and "female defilement." See Jeb Rubenfeld, The Riddle of Rape-by-Deception and the Myth of Sexual Autonomy, 122 YALE L.J. 1372, 1388 (2013). However, rape can also be viewed as a sex offense, because the victim's rights to sexual integrity and autonomy have been violated. See Patricia J. Falk, Rape by Fraud and Rape by Coercion, 64 BROOK. L. REV. 39, 141 (1998). This right is given so that people can decide for themselves who and how to have sexual intercourse. In this respect, rape law can be viewed as a protection of both the sexual and physical autonomy of victims, since rape violates a victim's interests and rights in two ways. See Susan Estrich, Rape, 95 YALE L.J. 1087, 1105 (1986). The first violation occurs by the use of force, where the victim's "interest in freedom from injury and the right against intentional injury protected in nonsexual contexts" is violated. The second violation occurs because the victim's body is used "for sexual gratification violat[ing] the interest in exclusive control of one's body for sexual purposes." See Donald A. Dripps, Beyond Rape: An Essay on the Difference Between the Presence of Force and the Absence of Consent, 92 COLUM. L. REV. 1780, 1797 (1992).

During the past several decades, rape law has been reformed in radical ways. And as the world began to change, the laws did too. This wave of reform incorporated the right of sexual autonomy into rape law. In 1977, in the United States Supreme Court's decision of Coker v. Georgia, the Court noted that rape violates a woman's sexual autonomy. 433 U.S. 584 (1977). This explanation by the Supreme Court has helped establish a new way of viewing rape as a crime that violates a victim's sexual autonomy. See Rubenfeld, supra, at 1383. There is also a considerable amount of literature by rape scholars discussing the sexual autonomy. See, e.g., SUSAN ESTRICH, REAL RAPE 102 (1987); see also STEPHEN J. SCHULHOFER, UNWANTED SEX: THE CULTURE OF INTIMIDATION AND THE FAILURE OF LAW 16-17 (1998). This change in society and view of rape as a violation of one's sexual autonomy has effectively shifted the analysis to where the consent element has become the focus of rape law. See Russell L. Christopher & Kathryn H. Christopher, Adult Impersonation: Rape by Fraud as a Defense to Statutory Rape, 101 NW. U. L. REV. 75, 88 (2007).

The New York legislature made changes to Article 130 when it enacted the Sexual Assault Reform Act of 2000. See Law of New York 2000, Chapter 1, available at http://www.criminaljustice.ny.gov/legal services/ ch1_sex_assault_reform_2000.htm. This act was designed to reflect the modern views and theories about the nature of the crimes of rape and criminal sexual acts as violations of the victim's personal autonomy, and not as a violent act. See Eve Cary & Lynn W. L. Fahey, Introduction, 6 N.Y. Prac., Criminal Law §7:1 (April 2012).

Most significantly, the Act created new crimes of rape in the third degree and criminal sexual act in the third degree. These statutes were created for the purpose of punishing "date rapes" where there was no force beyond that required to commit the sexual act. The statutes focused on the victim making it clear in a manner that a reasonable person would understand that he or she does not consent to the sexual act. This law reflected the societal view that "no means no," and that a person who commits sexual acts when he or she knows that those acts are unwanted should not go unpunished because he or she did not use any physical force. These new statutes were examples of the New York legislature reforming their rape laws to be violations of a victim's personal autonomy, and not as violent acts.

When constructing a statute, "words are not to be rejected as superfluous when it is practicable to give to each a distinct and separate meaning." See N.Y. STATUTES LAW § 231 (2013). Therefore, the § 130.35, in conjunction with § 130.05 requirements of "by forcible compulsion" and "without consent of the victim," are to be understood as two distinct and separate elements. In order to satisfy these requirements for a conviction of rape, the People must show beyond a reasonable doubt that the defendant committed sexual intercourse, (1) by a "use of physical force, or a threat, express or implied, which places a person in fear of immediate death or physical injury to himself, herself or another person, or in fear that he, she or another person will immediately be kidnapped," and (2) "without consent of the victim." This interpretation of § 130.35 has significant implications for cases where the victim's consent to have sexual intercourse is obtained through fraudulent means. These cases, known as rape by fraud, deception, or impersonation, are crimes that presently do not exist in New York.

B. Law of Rape by Fraud, Deception or Impersonation

Fraud, like force and coercion is rape because it vitiates the consent of the victim. However, the means differ with regards to consent. A denial of consent in rape by physical force needs to be a "legally effective non-consent." See ESTRICH, supra, at 102-03. However, in rape by fraud cases, the issue concerns whether or not a victim's consent to sexual intercourse obtained by fraudulent means is a "legally effective consent." See Christopher & Christopher, supra, at 78.

The two most common forms of rape by fraud occur in the context of medical treatment and marital relations. See Anne M. Coughlin, Sex and Guilt, 84 VA. L. REV. 1, 19 (1998). A typical medical treatment case can occur in two ways, only one of which can lead to a rape conviction under the traditional view. One such case is where a doctor has sexual intercourse with the patient, but conceals it from the patient who believes this to be nothing more than a pelvic examination or penetration by a medical instrument. The other case is where the doctor has sexual intercourse with his patient by telling the patient that the intercourse was a necessary medical treatment. See Wayne R. LaFave, 2 SUBST. CRIM. L. § 17.3(c) (2d ed. Oct. 2012). A typical marital relations case occurs when a spouse consents to sexual intercourse believing the other person to be his or her spouse. The fact of the matter is that in these examples of rape by fraud the victim consents to an act, but receives something very different. See Christopher & Christopher, supra, at 122.

The "traditional formula" for distinguishing between fraud that vitiates consent and fraud that does not vitiate consent is whether the fraud is fraud in the factum or fraud in the inducement. See Falk, supra, at 157. Rollin M. Perkins and Ronald N. Boyce describe such concepts as follows:

The general rule is that if deception causes a misunderstanding as to the fact itself (fraud in the factum) there is no legally-recognized consent because what happened is not that for which consent was given; whereas consent induced by fraud is as effective as any other consent, so far as direct and immediate legal consequences are concerned, if the deception relates not to the thing done but merely to some collateral matter (fraud in the inducement).
Id. at 158; see also Martha Chamallas, Consent, Equality, and the Legal Control of Sexual Conduct, 61 S. CA. L. REV. 777, 831 n.224 (1998).

However, this distinction has been criticized by many, and its influence is weakening.

As the analysis of rape shifted from a crime of violence to more of a violation of one's sexual autonomy, some jurisdictions went as far as enacting sex offenses that criminalized fraudulently obtained consent to sexual intercourse. See Lucy Reed Harris, Comment, Towards a Consent Standard in the Law of Rape, 42 U. CHI. L. REV. 613, 644 (1976); see Falk, supra, at 161. Many jurisdictions also have prohibited specific types of fraud. New York, however, does not criminalize rape by fraud in any way, shape, or form.

C. New York Case Law

The first known case in the state of New York to address rape by fraud was People v. Bartow, 1 Wheeler CC 378 (N.Y. Recorder's Ct. 1823), cited in the reports of criminal law cases decided at city hall in New York City. In 1823, the court decided whether force was necessary to constitute rape. Ann Way, the complainant, was a married woman and lived with her husband. On April 15, 1822, after returning home from a day of work, she went to sleep and was awakened by the defendant, whom she thought was her husband, having sexual intercourse with her. About a half an hour later, Ann Way's daughter came into the room and noticed that her mother was in bed with another man, and shouted "get up, mother, get up man." The defendant was eventually apprehended and arrested and was charged with assault and battery.

After the prosecutor rested his case, defense counsel, arguing for dismissal, challenged the charge of assault and battery, and demanded that there could be no conviction. He argued that assault and battery, a misdemeanor, should be merged with the crime of rape, a felony. And based on the account of the complainant, defense counsel claimed that the merger can be established since the defendant might have raped her by fraud, thereby merging assault and battery with rape. The argument was that in a rape case, fraud must be construed to mean force, citing to New York City Mayor Cadwallader Colden's statement made in that very court regarding an attempt to commit a rape that "if the defendant has succeeded in deceiving the woman and accomplishing his purpose, he would have been guilty of rape." Id. at 380.

The court decided "that force was an essential ingredient in this kind
of felony," and fraud would not be construed as such, thereby not dismissing the prosecution. Id. The jury ultimately rendered a verdict of not guilty. At the conclusion of the reported case, there is a note to the effect that former Chief Justice Smith Thompson of the Supreme Court of New York, at a court of Oyer and Terminer in Albany, ruled "that force was not necessary to the commission of a rape, but that stratagem might be tried to supply its place," and so he charged a jury in a case similar in character to Bartlow.

In 1867, in Walter v. People, the Supreme Court, New York County, held that a jury charge relating to a doctor who told his patient that he needed to perform sexual intercourse with her because it was necessary for the recovery from a disease in her womb was erroneous. 50 Barb. 144 (1867). The proposed jury instruction stated: "[a]s to the degree of force used in a case like this, where resistance is not made by reason of a representation leading the female to believe that sexual penetration of her body is necessary for the recovery from disease, the force used in ordinary sexual intercourse is sufficient to constitute a rape." Id. at 146-47. The court noted that there is no authority for such a proposition. The suggestion rests upon a treatise that the court does not regard as authoritive, and the note that was found at the end of the report of People v. Bartow. The court held that these "loose statements" are not entitled to any consideration. Essentially, the courts in New York would not interpret the Penal Law as having established rape achieved by fraud.

i. People v. Evans

In 1975, in People v. Evans, the defendant tricked a woman by admittedly using false premises and "a psychological game" to induce her into his apartment by claiming to be a psychologist, whereupon he seduced her by means that were very intimidating and threatening. See 85 Misc.2d 1088 (1975). The Supreme Court, New York County, made it clear that the essential element of rape in the first degree is forcible compulsion. The court decided that if there is actual consent to the sexual intercourse then no matter how wrong the fraud, it is not rape. Fraud cannot be substituted for the force requirement of rape. The court in its analysis noted that seduction is not like rape, since "the consent of the woman, implied or explicit, has been procured, by artifice, deception, flattery, fraud or promise." Id. at 1095.

However, the court reasoned that since the common law, the courts have recognized larceny by trick, as long as there was a taking of property value. Therefore despite the fact that the law recognizes crimes where trickery and deceit compose the basis for a criminal charge it would not apply to a woman's right to her body since as defined by law, her body is not property. The court did voice its disapproval of the defendant's conducts by calling him "The Abominable Snowman." Id. at 1099.

ii. People v. Hough

When People v. Hough came before the District Court, Nassau County, in 1994, the court explored the issue of whether a female actually consents to sexual intercourse with a male who obtains the consent of the female by impersonating the female's boyfriend. 159 Misc.2d 997 (1994). While sleeping in her apartment which she left unlocked because she was expecting her boyfriend Lenny Hough to come over, the complainant was awakened by a knock that she believed was her boyfriend at the door. The woman instructed the defendant to come in believing it was her boyfriend. Turning the lights on and realizing that the male was not Lenny but his twin brother Lamont, she and the defendant talked shortly and after the defendant left the apartment, the woman went back to sleep.

A short while after, the woman heard another knock on the door and heard a male, who sounded like her boyfriend, say "open the door." The woman got out of her bed turned off the light near the door and Lamont, whom the complainant thought was Lenny, entered into the apartment. After speaking to each other momentarily in the dark the two made their way into the bedroom, where Lamont began to sexually touch the complainant and eventually engage in sexual intercourse with the woman. Throughout the sexual engagement the complainant was calling the defendant Lenny.

When the two had finished the act, Lamont said "was that the best sex you ever had?" and "what are you going to tell Lenny?" The complainant got out of her bed, turned on the lights and saw that the male was Lamont, not Lenny. She threw the defendant's clothes out the door and the defendant left. She then contacted the police and reported the incident. After his arrest, the defendant was charged with sexual misconduct. See id. at 999.

In its decision, the court began by stressing that under the Penal Law, § 130.20 must be read in conjunction with § 130.05, which provides the definition for lack of consent. However, the court noted that the lack of consent for which the People base their charge against the defendant is not claimed under § 130.05. Rather, the lack of consent is from the victim's "mistaken belief resulting from defendant's alleged fraud that the body she made love with was that of her boyfriend." Id.

The court noted that the crime of sexual misconduct does overlap with the crime of rape. And,according to the court, fraud cannot vitiate the consent element in both crimes. "In general, in the absence of a statute, where a woman is capable of consenting and does consent to sexual intercourse, a man is not guilty of rape even though he obtained the consent through fraud or surprise. The reason is that in the traditional definition of the crime of rape, the sexual intercourse must have been achieved 'by force', or 'forcibly.'" Id. at 1000. Courts have indicated that when a defendant impersonates a woman's husband, as the defendant did in Bartow, 1 Wheeler CC 378 (1823), that the consent by the woman for sexual intercourse may be vitiated. But as the court in Walter pointed out, no consideration is given to fraud vitiating consent. See50 Barb. 144 (1867).

However, the court also discussed a number of states that have enacted statutes that extended the traditional definition of rape to include fraud or impersonation. In Arizona, a former statute defined rape to include: "where the female submits under a belief that the person committing the act is her husband, and this belief is induced by any artifice, pretense of concealment practiced by the accused with intent to induce such belief." See Hough, 159 Misc.3d at 1000-01. In North Carolina, a former statute criminalized "any person who shall have had carnal knowledge of any married woman by fraud in personating her husband." Id. at 1001. The court also mentioned that the Model Penal Code makes it a crime for a male to have sexual intercourse with a female when he knows that she consents because she thinks he is her husband.

The court noted that since the legislature did not include cases of fraud or impersonation as a definition to a lack of consent under Penal Law § 130.05, it was intended. So the court would not legislate and construe a statute that the legislature did not intend on creating. Because of the court's inability to judicially legislate, and its realization that if the legislature had wanted fraud and impersonation to be defined as a lack of consent the legislature would have stated it, the court dismissed the charge of sexual misconduct against the defendant. Therefore, it ruled that if the defendant did deceive the complainant into have sexual intercourse with him, he is not guilty of sexual misconduct.

Interestingly, the court concluded that its decision is not saying that the defendant did nothing wrong if he did deceive the complainant. Rather, the court is saying that the prosecution charged the defendant with the wrong crime. And if the People wanted to file another accusatory instrument charging the defendant with another crime they could. The People never did, and the defendant was free from criminal liability.

D. Jurisdictions That Do Not Criminalize Rape by Fraud, Deception or Impersonation

New York is among the jurisdictions that do not criminalize defendants who obtain consent for sexual intercourse obtained by fraudulent means. These states have held that such an act is not sufficient to be deemed rape under the law. As the court in Evans noted, their decision was consistent with the "prevailing view in this country." Evans, 85 Misc.2d at 918-19.

The court relied on a Supreme Court of Michigan case from 1872, Don Moran v. People. 25 Mich. 356 (1872). In Don Moran, the defendant, a doctor, induced a 15-year-old girl to have sexual intercourse with him. After the defendant examined the girl, he diagnosed her with an inverted uterus and said that she was ulcerated. He told her that in order "to save her life it would be necessary to enlarge her 'parts.'" Id. at 357. The defendant explained to her that he can do this with instruments, but that she would probably die. He then told her that the only way to live would be to have sexual intercourse with him. At first she objected, but then the doctor, using deceptive statements, told her that he has done this to all women who have been treated by him, and that her father authorized the sexual intercourse. The girl relied on these statements and consented to sexual intercourse with the doctor.

The court overturned the conviction because the trial court had in error instructed the jury by ignoring the requirement of force for the crime of rape. The court held that fraud cannot substitute force in rape. But the court also noted that obtaining sexual intercourse by fraud may be as criminal as forcible rape if the legislature were to outlaw it.

Another case, Commonwealth v. Goldenberg, decided in 1959, was also relied on by the Evans courts. See338 Mass. 377 (1959). The Supreme Judicial Court of Massachusetts decided whether rape is committed when consent is obtained by fraud. Goldenberg, a physiotherapist was referred to by someone to help a patient obtain an abortion. He told his patient that on the second of three procedural visits, he would have to have sexual intercourse with her and that it would help somehow. The patient did not object, and the defendant eventually had sexual intercourse with her.

After a few days, the woman told a friend what happened and she later told her mother as well. The Massachusetts State Police was eventually notified as to what happened, and the defendant was eventually charged with rape. The defendant was eventually found guilty of rape, and he appealed with exceptions to the jury's verdict.

The Supreme Judicial Court sustained the exceptions, set aside the jury's verdict, and ordered a judgment for the defendant. The court's ruling was based on the grounds that the evidence was not sufficient to prove that rape was committed. The court could not come to the conclusion that the woman did not consent to sexual intercourse, nor hold that the force requirement had been met. Therefore, the court held that obtaining consent to sexual intercourse by fraudulent means is not rape in Massachusetts. The court stated that "[f]raud cannot be allowed to supply the place of the force which the statute makes mandatory." Id. at 384.

In Suliveres v. Commonwealth, the Supreme Judicial Court of Massachusetts once again decided whether a defendant who fraudulently obtains consent to have sexual intercourse is considered rape. 449 Mass. 112 (2007). In Suliveres, the defendant entered into his brother's girlfriend's dark bedroom, impersonating his brother, strikingly similar to the facts in Hough, and had sexual intercourse with her. She believed the defendant was her boyfriend at the time of the intercourse. The Commonwealth asked the court to overrule the Goldenberg decision, which was decided in 1959.

The court reaffirmed the decision made in Goldenberg and ruled that "[f]raudulently obtaining consent to sexual intercourse does not constitute rape as defined in our statute." Id. at 118. The court would not read "force" out of the rape statute. Since the legislature never amended the statute, the court was not going to rewrite the intentions of the statute. Therefore, the court ruled that if the force and lack of consent elements of rape were both not satisfied, then sexual intercourse obtained by fraud would not constitute rape in Massachusetts. Besides for these cases, courts in other jurisdictions have also held that sexual intercourse obtained by fraudulent means does not satisfy the force element and is not rape. See, e.g., Lewis v. State, 30 Ala. 54, 56 (1857); State v. Brooks, 76 N.C. 1, 4 (1877); Commonwealth v. Culbreath, 36 Va. Cir. 188, 189 (Va. Cir. Ct. 1995).

E. Jurisdictions That Do Criminalize Rape by Fraud, Deception or Impersonation

Several jurisdictions have gone beyond the traditional common law position with respect to rape by fraud. These jurisdictions have sought to criminalize rape by fraud by providing different statutory solutions. Patricia J. Falk, in her extensive study, identified four different approaches that state legislatures have taken. First, some states "simply outlaw fraud in the context of certain professional relationships." This includes medical and health care professionals, psychotherapists and mental health professionals, or members of the clergy. Second, state legislatures have adopted a global consent definition in their criminal code declaring consent to be ineffective if obtained by "deception." See Falk, supra, at 89-132 and 169-71.

Third, states specify a very precise variety of fraud under which victim's consent is not a defense. This includes older provisions outlawing husband impersonation or fraud as to the nature of the act. See id., supra, at 169. Three states have added a newer provision where consent obtained by fraudulent means is deemed insufficient. Alabama criminalizes "a male, [who] engages in sexual intercourse with a female. . . with her consent where consent was obtained by the use of any fraud or artifice." ALA. CODE § 13A-6-65 (2013). Kansas defines rape as "sexual intercourse with a victim when the victim's consent was obtained through a knowing misrepresentation made by the offender that the sexual intercourse was a medically or therapeutically necessary procedure; or .... was a legally required procedure within the scope of the offender's authority." KAN. STAT. ANN. § 21-5503 (2013) (formerly cited as § 21-3502).

Lastly, California punishes "[e]very person who induces any other person to engage in sexual intercourse . . . when his or her consent is procured by false or fraudulent representation or pretense that is made with the intent to create fear . . ." CAL. PENAL CODE § 266c (2013). The California legislature amended its rape laws by including this new type of offense in response to Boro v. Superior Court. See 163 Cal.App.3d 1224 (1985). Boro posed as a doctor and tricked women into having sexual intercourse with them. He would tell the women that the act was necessary to cure their fatal blood diseases. The defendant would give them a choice of either undergoing a painful and expensive surgery or having sexual intercourse with a donor, the defendant, who had been injected with a special serum. The prosecution claimed that his actions fell under a statute prohibiting sexual intercourse with a victim who is unconscious of the nature of the act. See CAL. PENAL CODE § 261(4)(2012).

Boro appealed and argued that that statute did not cover his case. The Court of Appeals agreed and drew a distinction between fraud in the factum and fraud in the inducement, and held that only the former vitiates consent. The dissent argued that under the California statute that defines consent, although not repealing the factum-inducement distinction, it restricted consent to "cases of true, good faith consent, obtained without substantial fraud or deceit." See Boro, 163 Cal.App.3d at 1231-32 (Holmdahl, J., dissenting). Eventually the California legislature passed a new statute criminalizing this conduct. Ironically, Boro was apprehended again in 1987 for the same scam and prosecuted under this new law that was specifically designed for him.

The fourth and final approach taken by state legislatures is adopted by Tennessee, which simply revised parts of its sexual offenses statutes to encompass, without limitation, sexual penetration "accomplished by fraud." TENN. CODE ANN. §§ 39-13-503, 39-13-505 (2013). Cases such as State v. Tizard have treated this statute as effectively abolishing the traditional fraud in the factum-fraud in the inducement distinction. See 897 S.W.2d 732 (1994). In Tizard, the defendant was convicted on two counts of sexual battery for allegedly having sexual contact with the victim by means of fraud. The victim sought the need of a doctor in order to obtain steroids to help him gain muscle so that he can compete in future karate tournaments. During several visits the doctor rubbed the patient's genitals, and on one occasion caused the victim to ejaculate.

The state prosecuted the defendant under it sexual battery statute that included a fraud provision. The defendant cited the California case of Boro v. Superior Court, 163 Cal. App.3d 1224 (1985), and argued that the statute only reached fraud in the factum and not fraud in the inducement. The court did not find the defendant's arguments persuasive and rejected the distinction in the context of Tennessee law. See Tizard, 897 S.W2d at 741. Furthermore, the court noted that the state legislature included fraud "in its statutory definition of fraud and its criminalizing sexual contact accomplished by fraud." Therefore, the court convicted Tizard and concluded that he used his position as a doctor to touch the victim's genitals for his own sexual arousal or gratification. He did not touch the genitals for any medical purposes, noting that it "was accomplished under the guise of medical examination and treatment for the purpose of having the victim allow such touching." See id. at 742.


A. Legislative Addition is Needed to Extend Rape Law to Include Sexual Intercourse Obtained by Fraudulent Means

The Hough decision is a proper interpretation of Penal Law §130.05, since fraud is not defined as a lack of consent with regards to sex offenses. Furthermore, the Evans and Hough decisions are also proper because both distinguish between force and fraud and are consistent with the opinions of many jurisdictions. Additionally, the acknowledgment made by the court in Hough by pointing to the role of the legislature, demonstrates the respect the courts have for the balance of power between the legislature and the judiciary. Evans and Hough, having been decided in 1975 and 1994 respectively, stress the point that the defendants have committed wrong and immoral acts. However, the courts overturned the convictions solely because there was no such statute criminalizing them for their actions.

Although no New York court has dealt with the issue of sexual intercourse obtained by fraudulent means in almost 20 years, a legislative addition is needed to extend rape law, specifically Penal Law § 130.35, to include cases where consent is obtained by fraudulent means. The fact that the Hough court acknowledged its inability to judicially legislate since it is beyond the role of the judiciary, leaves only the legislature to enact a statute prohibiting rape by fraud. And although a court in New York has not encouraged the legislature to amend the rape statutes, the fact that other state legislatures have adopted rape by fraud statutes should inspire New York to do the same. See Falk, supra, 89-132, 169-71; see also LaFave, supra; see also Jocelynne A. Scutt, Fraudulent Impersonation and Consent in Rape, 9 U. QUEENSLAND L.J. 59, 64 (1975).

At the same time, many state legislatures have not created statutory remedies for victims of rape by fraud. Nevertheless, this should not excuse defendants who misrepresent themselves and fraudulently obtain consent to sexual intercourse, since it is as wrong an act as if actual threat or force had been made. See Falk, supra, at 44. While traditionally, rape has been viewed as a crime of violence, it can also be viewed as a sexual offense, because the victim's sexual integrity and autonomy have been violated. Legislative reform would be vital since it will protect both the sexual and physical autonomy of victims. See Estrich, supra, at 1105.

The New York legislature has already made changes to Article 130 when the Sexual Assault Reform Act of 2000 was signed into law by Governor George Pataki. See Law of New York 2000, Chapter 1, available at http://www.criminaljustice.ny.gov/legal services/ ch1_sex_assault_reform_2000.htm. The legislature should continue on that path and create a new statute which criminalizes rape by fraud. By viewing rape as a violation of one's sexual integrity and not as a crime of violence, this new law would further the changes the New York legislature has already made and continue that legislative push to protect a victim's personal autonomy.

Legal commentators have been advocating for rape law to include obtaining consent for sexual intercourse by fraudulent means. Susan Estrich points out that "[l]ying to secure money is unlawful theft by deception or false pretenses, a lesser crime than robbery, but a crime nonetheless. Yet lying to secure sex is old-fashioned seduction-not first-degree rape, not even third-degree rape." See Estrich, supra, at 1120. Therefore, she suggests that a law should be enacted to "prohibit fraud to secure sex to the same extent we prohibit fraud to secure money, and prohibit extortion to secure sex to the same extent we prohibit extortion to secure money." Id. She does note however that such a law is quite broad and doesn't "make clear that loss of bodily integrity is a different and greater injury than loss of money and thus merits greater punishment." Id. at 1121. Nevertheless, this argument is still an important one in expanding rape law.

Commentators also argue that despite the widespread adoption, the dichotomy of fraud in the factum and fraud in the inducement is flawed. Patricia Falk claims that the distinction is "objectionable on several grounds." Falk, supra, at 159-61. She argues that it is of "dubious origin" and questions its emergence. Second, she notes that the distinction does not make sense and "provides little real assistance in differentiating between legally effective and ineffective consent." Id. at 159. Third, she points to the fact that the dichotomy "fails to accurately distinguish degrees of voluntariness." Id. at 160. By courts focusing on this distinction, they essentially ignore the issue of whether the consent of the victim was voluntary or not, the more important issue.

Lastly, Falk notes that Rollin Perkins and Ronald Boyce claim that this difference "is only 'controlling in the prosecution of offenses in which absence of consent is an element of the crime, but important in the prosecution of other offenses.'" Id. at 161. Falk further notes that based on Perkins' and Boyce's analysis, the distinction could lose its significance in jurisdictions where statutes change the nonconsent element or create new statutes criminalizing sexual battery or sexual extortion. See id.

B. Different Methods the New York Legislature Can Decide to Follow

State legislatures have responded to changing times and many have begun to amend their rape statutes to include consent obtained by fraudulent means for sexual intercourse. If the New York legislature were to follow the trend and adopt such a statute into their Penal Law, they have several different methods to choose from. The first method would be to simply outlaw fraud in the context of certain professional relationships. Such statutes would essentially protect victims by punishing those who occupy positions of trust (i.e., doctors, psychotherapists, lawyers, clergy-members etc.). Although this is a step in the right direction, it is limited. In cases like Hough and Evans, the defendant would still go unpunished because he did not commit the fraud in such a context.

The second method would be to declare a global consent definition declaring consent to be ineffective if obtained by "deception," following the Model Penal Code. Model Penal Code §2.11 (2013). For instance, the New York legislature could follow the Missouri legislature in defining consent to be invalid "if it is induced by force, duress, or deception. MO. ANN. STAT. § 556.061(5)(c) (2013). By following this method, the consent would be vitiated when it is acquired by fraud, and it would place no limitation on the requisite type of fraud. This provision would also abolish the factum-inducement dichotomy, thereby rendering the victim's consent ineffective. This is a good option for the New York legislature to take, but by itself it is not broad enough to make an amendment whereby there would be no loopholes. This option will help create an amendment to the rape statute, with the fourth method that will soon be discussed. By combining the two methods, together it will be a more beneficial amendment to adopt.

The third method would be to specify a very precise variety of fraud under which victim consent is not a defense. While this method is also a step in the right direction, these legislative reforms are useful only to the extent that they could extend liability to where consent is obtained by fraudulent means. The California legislature created a statute where consent obtained by false or fraudulent representation with intent to create fear is prohibited. See CAL. PENAL CODE § 266c (2013). This provision would only be appropriate to those cases where consent obtained by fraud will induce fear. Under the amendment, fraud alone is insufficient; the fraud needs to trigger fear for there to be liability, thus limiting the application of the statute.

California had another statute prohibiting spousal impersonation. See CAL. PENAL CODE § 261(a)(5) (West 2012). The statute prohibited and criminalized a perpetrator who has sexual intercourse with a person by impersonating the victim's spouse. The limitation of this statute was seen when the Court of Appeals of California decided the case of People v. Morales. 212 Cal. App.4th 583 (2013). In Morales, the victim "woke up to the sensation of having sex." Id. at 587. She was confused because she had decided earlier that night not to have sex with her boyfriend. But when light came through a crack in the bedroom door, she realized she was having sex not with her boyfriend, but with her brother's friend, the defendant. The defendant was eventually arrested.

The defendant was found guilty and convicted of rape of an unconscious person. The defendant appealed his conviction and the Court of Appeals reversed. The court reasoned that since there is a separate provision that makes sexual intercourse by impersonation rape, the statute only applies when the victim is married and the perpetrator impersonates the victim's spouse. However, here the court held, "reluctantly", "that a person who accomplishes sexual intercourse by impersonating someone other than a married victim's spouse is not guilty of the crime of rape of an unconscious person . . ." Id. at 595.

This ruling showed that such impersonation cases apply only to one's spouse, and not to anyone else. On September 8, 2013, the California legislature amended CAL. PENAL CODE § 261(a)(5) to now read: "Where a person submits under the belief that the person committing the act is someone known to the victim other than the accused..." However prior to that amendment of the statute the defendants in Hough and Evans did not commit their fraud in that context; therefore, they would've gone unpunished. With the new amendment to the statute, the defendants would be criminalized for their actions.

Kansas also amended its rape statute to include rape by fraud where consent is obtained through "knowing misrepresentation." See KAN. STAT. ANN. §§ 21-5503(a)(4) 21-5503(a)(5) (2013). This type of fraud, however, is limited to only two categories, knowing misrepresentation in the context of medically or therapeutically necessary procedure and abuse of authority. This statute also restricts itself and is therefore incomplete, and would not punish the defendants in Hough and Evans.

C. Revisions to the New York Penal Law Rape Statutes

i. Tennessee's Rape Statute as a Model for a Revision of Rape in the First Degree

The fourth method that the New York legislature can take is revising their rape statute to include without limitation, sexual penetration "accomplished by fraud," as the state of Tennessee has done. TENN. CODE. ANN. § 39-13-503 (2013). The Tennessee legislature defines rape as the "unlawful sexual penetration of a victim by the defendant or of the defendant by a victim accomplished by any of the following circumstances . . . (4) The sexual penetration is accomplished by fraud." TENN. CODE. ANN. § 39-13-503(a)(4) (2013). Furthermore, such fraud is defined "as used in normal parlance and includes, but is not limited to, deceit, trickery, misrepresentation and subterfuge, and shall be broadly construed . . ." TENN. CODE. ANN. § 39-11-106(a)(13) (2013).

Using Tennessee's statute as a model, New York Penal Law § 130.35 should be amended to look as follows:

A person is guilty of rape in the first degree when he or she engages in sexual intercourse with another person: 1. By forcible compulsion; or 2. Who is incapable of consent by reason of being physically helpless; or 3. Who is less than eleven years old; or 4. Who is less than thirteen years old and the actor is eighteen years old or more; or 5. By accomplishing such sexual intercourse by fraud. Rape in the first degree is a class B felony.

Tennessee's fraud definition should also be added to the sex offenses definitions of terms in New York Penal Law § 130.00. This addition would be helpful because the new rape statute will be broadly construed and apply to a variety of situations where consent is obtained by fraudulent means, not having to be limited in scope with statutes that specify the fraud. See State v. Tizard, 897 S.W.2d at 742.

Under this amendment three elements would be required: (1) sexual intercourse, (2) some type of fraud, and (3) lack of consent. Since it is an element in every sex offense in New York that a "sexual act was committed without consent of the victim," the legislature should add a new definition of lack of consent to the New York Penal Law § 130.05. It will thus read "2. Lack of consent results from: ... or; (e) a mistaken belief resulting from an actor's alleged fraud." Now courts will be able to punish defendants that obtain consent through fraudulent means for sexual intercourse.

This last option seems like the best choice for the New York legislature to take in amending the Penal Law, however, there are counterarguments to such a change. A concern by many in expanding the scope of rape by fraud liability is where to draw the line between criminal fraud and noncriminal fraud. See JOSHUA DRESSLER, UNDERSTANDING CRIMINAL LAW 595 (5th ed. 2009). While many agree that spousal impersonation and fraudulent medical treatment should be criminalized, many also struggle with situations of exaggerations of affection, romance, social status, and wealth. Many worry that criminalizing rape by fraud too broadly would "open a Pandora's box that cannot be closed." Christopher & Christopher, supra, at 106. Examples could stretch as far as criminalizing every male who falsely claims his love to a female or promises to marry the female just to secure her consent for sexual intercourse. See DRESSLER, supra, at 595.

Other counterarguments include cases where definitional challenges for the crime of rape come up. This argument brings back the discussion of whether the act of rape is a crime of violence or a sexual offense, and thus whether the function of rape law exists to protect the victim's physical security or there sexual autonomy. See Falk, supra, at 45. Also, because generally these cases lack physical force, and consent is present, it conflicts with the traditional doctrine of rape law. This concern raises issues such as the relationship between the elements of force and nonconsent, whether physical force is actually needed, and what is considered a legally effective consent. See id. at 45-46.

By enacting such an amendment to Article 130, the legislature will allow the courts to decide for themselves whether such cases are indeed rape by fraud crimes. If the New York legislature were to adopt this amendment, it must trust the courts to fulfill their primary objective of interpreting and applying the laws. This adoption would leave the courts the responsibility of deciding on a case by case basis whether the accused has committed fraud according to the new definition in § 130.00.

Although there are concerns that this new adoption could lead to broad interpretations that perhaps were never thought to encompass before, it should not prevent the legislature from enacting laws that will ultimately protect victims' sexual and personal autonomy. Therefore, the legislature should adopt this broad amendment to the New York Penal Law criminalizing sexual intercourse accomplished by fraud, leaving the task of interpretation to the courts.

ii. Second Option: Changes to Rape in the Third Degree

If the New York legislature chooses not to adopt the Tennessee statute, it can adopt the second method mentioned earlier. If the legislature decides that the Tennessee statute is too broad, a statute criminalizing rape by fraud can still be enacted as a lesser crime under Rape in the Third Degree, § 130.25. This statute would focus solely on the consent of the victim. The legislature can create a global consent definition essentially declaring the victim's consent to be ineffective if obtained by "deception."

By creating a new definition of ineffective consent, the legislature can make a change to Rape in the Third Degree. One of the elements that satisfy a conviction for rape in the third degree is "when: ... (3) He or she engages in sexual intercourse with another person without such person's consent where such lack of consent is by reason of some factor other than incapacity to consent." The legislature can include rape by fraud by including the new definition of a lack of consent that was mention previously. This new definition would be a mistaken belief resulting from an actor's alleged fraud.

If the New York legislature would add this new lack of consent definition to §130.05, it would satisfy the third element of §130.25. Since this type of "lack of consent" is by reason of some factor other than incapacity to consent, a defendant who obtains a victim's consent to sexual intercourse by fraudulent means would meet this new requirement under Rape in the Third Degree. By creating this new definition, the New York legislature can adopt an alternative amendment that would punish accusers of rape by fraud as a lesser crime, but a crime nonetheless.

IV. Conclusion

Although a case of rape by fraud has not appeared before a judge in a New York courtroom in almost twenty years, it should not stop the New York legislature from adopting a statute that makes sexual intercourse accomplished through fraud a punishable crime. This legislative change is necessary to guarantee that perpetrators who obtain sexual intercourse by fraudulent means not go unpunished. The New York legislature must follow the trend of the nation and continue to make laws that protect victims of rape.

Daniel J. Slomnicki is expecting to graduate from St. John's University School of Law in January 2014. He graduated from Touro College in 2009 with a degree in Political Science. He served as a legal intern for the Richmond County, Kings County, and Queens County District Attorney's Offices, and is pursuing a career in criminal law. He is a member of St. John's Polestino Trial Advocacy Institute. He lives in Staten Island with his wife and their son. The author would like to extend a special thank you to Dean Larry Cunningham for his editorial advice and support.

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This page contains a single entry from the blog posted on November 14, 2013 9:40 AM.

The previous post in this blog was "Big Data And Criminal Law" by Samuel Yellen.

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