In late July, I blogged about the Kashur case, in which a defendant was sentenced for “rape by fraud”: According to the stipulated facts in court — the decision was based on a guilty plea — Kashur had sex with a woman with her consent, but she consented because he told her he was a Jewish bachelor; in reality, he was a married Palestinian. (For more on the claimed non-stipulated facts, see David Bernstein’s later post.)
I wasn’t quite satisfied, though, with just reading press accounts, so I asked the UCLA Law Library to have the case translated for me; and then I learned that the case seemed to rest on a past precedent (which didn’t involve a lie about ethnicity), so I asked the library to have that case translated for me as well. That’s now basically done, so I thought I’d pass along an edited version of the two cases — the earlier precedent (Saliman, translated by Elinor Eizdi) and Kashur itself, translated by Ariel Strauss; thanks also to Justin Hellman and Jack Gindi for helping me review the edited translations.
Note that under American law, sex for which consent is procured by a lie is generally a crime only (1) when the fraud relates to the nature of the act (i.e., the defendant claimed he was a doctor who was going to medically examine the woman’s genitals, or perhaps even administer a medical cure by having sex with her), or (2) in some states, when the defendant impersonated the woman’s husband. There was a proposal last year in Massachusetts that would have generally criminalized rape by fraud, and I blogged about it here; but to my knowledge it didn’t go anywhere. And while a few American rape statutes might already criminalize sex procured through false statements (or provide as to crimes generally that “assent does not constitute consent if ... [i]t is induced by force, duress, or deception”), I know of no cases applying those statutes in the typical lying-to-get-sex case. State v. Tizard, 897 S.W.2d 732 (Tenn. Ct. Crim. App. 1994) holds that Tennessee law rejects the distinction between “fraud in the inducement” and “fraud in the fact,” which is what has prevented rape prosecutions in cases such as the Israeli one; the facts of Tizard, though, are rather different — the defendant was lying about the supposed medical reason of the sexual act (there, the defendant’s masturbation of the victim, though the analysis would be the same for intercourse) rather than about the defendant’s identity.
Here then are my edits of the translations of the Israeli cases:
Saliman v. State, Israel Supreme Court (2008)
[Defendant approached several women claiming to be a Housing Department official who could help them get an apartment if they had sex with him; and he did indeed have sex with some of them. He was convicted of several counts of forcible rape, but one of the charges was that one of the women, R.G., consented but only because of his lies. The court upheld the rape by fraud conviction, reasoning thus: -ed.]
[T]he Appellant approached R.G. while she was at the market in Natanya. The Appellant told her that she looked familiar, that he was the chairman of a highest committee in the Housing Department, and identified himself as Yaron. The Appellant asked her whether she owned a house or whether she rented. R.G. responded that she had been renting for 15 years and taking care of six children.
The Appellant claimed that she is entitled to an apartment and offered to see an apartment with her. R.G. drove with the Appellant to Ramat Poleg where the Appellant pointed at a cottage and told her that this is her house, but since he does not have the keys to the cottage, he offered her coffee in a friend’s apartment. The Appellant took R.G. to his room and as they entered, locked the door and told her that the house he just showed her will be hers within three months.
At a certain point, the Appellant started caressing R.G.’s neck and back, and when she inquired as to his actions, he told her that he wanted her to be with him, that it would be good for her and that he would help her with the house. R.G. took his hand off, wished to leave and asked him to open the door. At that point, the Appellant told her that she would receive the promised cottage and because of that, R.G. agreed to have sexual relations with him[, which they did]....
Section 345 of the Criminal Law [now reads] …
“(a) One who has intercourse with a woman
(1) without her freely given consent through the use of force, physical injury, other pressure triggers, or a threat to use one of the above against her or someone else
(2) with her consent that was given through the use of fraud as to the nature of the actor or the essence of the act
(3) when the woman is a minor, less than 14 years of age, even though she has consented
(4) when the woman is unconscious, or is unable to consent [or]
(5) when the woman is mentally or emotionally ill, if she had not given her consent but for her illness.
Is thus a rapist, and the sentence is 16 years in prison.…” …
Section 414 of the Criminal Law states that fraud is “a claim of a past, present or future fact that is communicated by writing, speaking, or behavior and which the person who is claiming this knows that it to be false or does not believe it to be true.” ...
Fraud as to the Essence of the Act
In cases where the conviction was based on fraud as to the essence of the act, a sexual act was performed under the pretense of a professional treatment. There are many examples. In In re Tayeb, the Appellant, a physical therapist, treated a young Australian woman and under the pretense of treatment performed an indecent act. This Court convicted the Appellant of rape pursuant to section 345(a)(4) and sodomy ..., in addition to his conviction of an indecent act to which consent was fraudulently obtained. In re Avivi dealt with a painter who invited women to pose for him, in return for payment and under the pretense that touching them was an integral part of his artistic work, performed sexual acts against them. The Appellant was convicted of rape by fraud as to the essence of the act and indecent act…. In State of Israel v. Dr. Bogdan Dekel, a gynecologist raped and performed indecent acts against several patients during gynecological examinations. In Pelah v. State of Israel a clinical psychologist was convicted among other things of indecent acts and sodomy by fraud after performing sexual acts against several patients under the pretence that those acts were part of the treatment.
Finally, the subject in Peloni v. State of Israel was a sheikh who was believed to have healing powers, which also extended to sexual problems. The Complainant, a young Bedouin woman came to him with her husband to ask for his advice. Among some of the “medical instruments” he used were holding her breasts, putting his hand on her genitals, raping and sodomizing her and inserting his genitals into her mouth. The Appellant was convicted of rape pursuant to section 345(a)(2), attempted rape, indecent act and sexual attack.
Fraud as to the Nature of the Actor
The District Court’s verdict focused on rape as to the nature of the actor…. [D]efining the offense … is not simple ..., and there is a danger of a slippery slope: Will it be considered rape every time a man lies to a woman concerning a detail which she considers of essence and because of it she decides to have intercourse with him? For example, a woman who does not wish to date any man older than 35 years old is approached on a dating site by a man who identifies himself as 32 years old. After she has intercourse with him, she incidentally finds out that he is 40 years old; is that rape? After all, this is an important detail in her eyes.
And what about a man who lies about his education to a woman for whom academics is at the top of the list and who wishes to date an academic or one with a specific profession (doctor, engineer), and if the woman knew that the man does not meet this criterion she would not even have considered having sexual relations with him? We can think of numerous examples, but reality exceeds all imagination, especially in our world where many acquaintances start virtually, which is a fruitful ground for submitting incorrect information .... At the end of the day we are faced with the question, where do we draw the line? When does a “white lie” part of “legitimate courting” become “fraud” denying one of freely giving their consent?
Courts have not dealt much with rape by fraud as to the essence of the actor, and there are not many which have convicted defendants of this offense…. In State of Israel v. Mehadakar the defendant contacted young women, through the internet, presenting himself as a 17-22 year old man (while in reality he was 30 years old) and had intercourse with them. Based on his own admission, the defendant was convicted of rape pursuant to section 345(a)(2) in one of the cases and of fraudulently receiving a benefit in the others as part of a plea bargain.
Reviewing the ruling, it seems that there are cases, which could have been included within the category of “rape by fraud,” yet the complaint and the conviction were of fraudulently receiving a benefit. In Denino v. State of Israel, a married man presented himself to the Complainant as divorced and added that he was waiting to receive certain documents from France so that he could remarry. During one of their meetings, the man first forcibly had intercourse with the Complainant and with her consent the second time. The Supreme Court judges were divided as to whether they should convict the Appellant of fraudulently receiving a benefit, pursuant to section 2 of the Criminal Law. One of the Judges felt that intercourse should not be considered a benefit in this context, yet, Judge Ben Porat and Judge Shamgar thought that the conviction was justified and denied the appeal. Judge Shamgar stated:
“... [A] woman deserves [to have the power] to decide whether she wants to have a relationship with a married man, a father, or whether she does not want to get impregnated by such a man; and the man does not have the power to determine whether to hide the facts from her that could influence her decision ....”
In Elishabi v. State of Israel, the subject was a married Bedouin man and a father to two children who presented himself to a 16 year old girl as a Jewish bachelor. The two started seeing each other and the Appellant promised to marry her at the end of the school year. The two had intercourse and the girl got pregnant. As part of his act of impersonation, he attended the Seder [a Passover ritual dinner -ed.] at her house and even read from the Hagada [the Passover religious text -ed.], as well as came to pay his respects when the girl’s grandfather passed away. The Appellant was convicted of fraudulently receiving a benefit and impersonation.
Finally, in Ben Avraham v. State of Israel, a man systematically presented himself to women using different identities — a doctor, a pilot, a wealthy man — while characterizing various houses and vehicles as belonging to his family and him. The Appellant was convicted of fraudulently receiving a benefit after it concluded that the women had intercourse with him because of his deception. The Court noted: “... [P]art of courtship [is that] people tend to exaggerate in order to impress the other, and the judicial system should not enforce norms as to what should be the moral way to act or ‘courtship rules.’ Yet, where the lies take a different form, and become depravity aimed at ‘hunting women’ whether they be innocent or not, and the line demarking what’s allowed and what’s not has been crossed, what’s moral becomes the law and the enforcing systems need to intervene.” …
The ruling did not discuss this much, and the cases we have reviewed do not sufficiently provide us with clear guidelines as to when we have a case involving rape by fraud .... Thus, we are faced with the question: in what cases has sex by fraud taken place? What kind of lies and concealed facts are enough to transform “legitimate courtship” into a criminal offense? What does a man have to reveal when he is developing a relationship that will lead to intercourse? Does he have to present the complete picture?
Such a discussion took place in State of Israel v. Hen Alkobi, where a young woman initiated romantic relationships with several women, identifying herself as a man. The girl was convicted, based on her own admission, of impersonation. It was noted that: “when an individual has an intimated relationship with another without revealing to him/her the genetic/physical makeup, it shall be considered deceit as to the nature of the actor … when a romantic/erotic relationship is developed between two individuals, the sexual, biological identity of each is an essential element of their relationship. Under these circumstances, concealing one’s sexual identity is considered unfair, misleading as to a relevant fact, which is at the basis of their relationship and deceptive as to the essence of the act and the nature of the actor. If the Court will not intervene, it will be leaving the victims exposed and vulnerable to deception as opposed to not disturbing romance.”
Dr. D. Pogez discussed these issues in [an article] and suggested that the specific fraud related offenses be eliminated as well as the offense relating to intercourse pursuant to a promise of marriage but instead giving full power to the consent component as one given freely and consciously. According to her approach:
“True protection of sexual freedom can only take place on a individual basis, even though justice will be individualized and change depending on the case, exactly as fraud would have a different effect on each person. Thus, we should not limit this to a certain set of situations where fraud would invalidate consent, but rather have a general principle, flexible, where fraud which led to the consent would [cause the consent to be treated as invalid] — even though there are situation where we may assume that consent would be frequently invalidated, such as fraudulently representing that one is single while he is married[.] Protecting a woman’s freedom requires recognizing that there are certain facts that, if [the woman is mistaken as to them], would negate her ability to choose.” ...
In [another] article, A. Gross accepts this approach, yet doubts whether [it] should grant protection where the victim discriminates or is a racist; in these situations, protection of women comes at the cost of hurting the defendants....
[But one could respond to Pogez’s approach by arguing] that the implication is that every time a woman has intercourse with a man, and one detail about him is inaccurate, her consent would be invalidated; furthermore, would we want every sexual interaction between the sexes to be with the support of the criminal code?
And what would happen to romance? Some will argue that the beginning of relationships between men and women are commonly full of a scheme of “white lies,” exaggerated descriptions of reality, part of an attempt to be liked and part of the “courtship landscape.” Do we want this gray area between a man and a woman to be at the control of the criminal code? …
The Court In re Alkobi stated: “Indeed, there is not always a clear line between false presentation and intentionally misleading the partner, that reaches a level of a criminal offense, and one that does not. For example, the Israeli legislators chose to ban misrepresentation by enacting section 346(b), criminally sanctioning an individual who had intercourse with a woman pursuant to a false promise of marriage while pretending to be single when he is in fact married. On the other hand, not every time one does not disclose information, tells a ‘white lie,’ exaggerates, or misstates a detail while courting will consent be invalidated to the extent that the individual will be charged with rape and impersonation, and the courts as well as legislators should be careful criminalizing sexual behavior. The partner’s consent is dependent on cultural and social standards. As time passed and acceptable sexual behavior and morals change, these issues might change as well.” ...
It is difficult to make every interaction between two individuals that contains a “moral fault” be resolved in the context of criminal law. The Criminal Code is not a tool to be used to enforce moral norms, even if there is great overlap between moral and criminal wrongs, and sometimes the appropriate way to resolve an issue should be through the civil court system.
[Yet t]here should clearly be a line that we would not be willing to let people pass, beyond which protected values would be damaged and, if the court does not intervene, victims would be left unprotected…. This is not exaggerated paternalism but protection of the human dignity, of the woman’s autonomy over her body and sexual freedom, as the fraud is what harms the autonomy, and besides forbidding rape, the criminal prohibition is meant to prevent the fraud. At times arguing that this is exaggerated paternalism can mislead and paradoxically, in the name of free choice, deny it, and hurt victims in need of protection….
As was mentioned, Dr. Pogez suggested a test to the question of what is considered sex by fraud. I personally think that this test is too broad, and can include minor statements, even if they are important from the perspective of the partner, as a basis for a rape conviction. There is also some difficulty with the test that respondent has suggested (whether “under the circumstances, the woman’s ‘consent’ does not fulfill her free will due to the fraud”) – the test is not simple since ‘free will’ may be stretched into a whim. However, we should recognize the legislator’s will that the woman’s intimacy and her free autonomy be best realized, especially when the issue is rape.
It seems to me that the answer to the question of the limits and meaning of rape by fraud, can first be found in the meaning of the word “essence.” We will start with the dictionary [definitions, which are] … that essence is the “aggregation of all determinative qualities of an individual, identity,” and identity is defined as the “aggregation of all qualities special to a specific individual or a group of people[,” or that essence is “]the determination of who is a person or body that did or is doing a certain action, that filled or is filling a certain position, etc., identity or the determination of his identity.” …
[T]he principal thing is the aggregation of the essence of an individual — the total qualities that determine who he is. In general, we should distinguish between cases where a man does not say the truth regarding a certain detail about his identity, such as his age or occupation, and cases where he creates a fictitious character and an elaborate “cover story.” It seems that in cases such as the latter, differences in degree become differences in kind....
A possible test could focus on the idea of whether the individual does not tell the truth as to characteristics that are critical in the eyes of a reasonable woman and were the reason for why the woman had intercourse with him. This test will allow rape convictions in clear cases of such fraud, and along with that, screen out borderline cases where the characteristics that a certain woman saw are those that fraud representing them is not to considered rape. Similarly, [the test will allow punishment in cases where] there was no chance in the eyes of a reasonable man that a woman would agree to have intercourse with such a man under “normal” circumstances had she known his true identity ....
Indeed, ... it is a hard task to design a test that would clearly show us what cases have reached a level of rape by fraud, and it is impossible for us to include all the possible cases and variations. Yet, the standard we suggested, identifying the possibility a reasonable woman would have intercourse with this man had he not fabricated this “essence,” would allow us to examine every case and the circumstances surrounding it, and the concrete facts will determine the outcome. We do not to ask ourselves whether all those borderline cases are considered rape by fraud, but when we are faced with an appropriate case — even though we will not rely on “I know it when I see it,” as said by Judge Stewart when asked what obscenity is (Jacobellis v. Ohio, 378 U.S. 184, 197 (1964); see also Station Film v. the Film and Play Critics Association) — we will rule as needed, as such we will do in the case before us.
Furthermore, ... I do not believe we should address this as part of a discussion of fraudulently receiving a benefit…. [W]e cannot include cases where at issue is property and wealth along with intercourse at the same time we are discussing a fraudulently receiving a benefit, especially when the legislature has established a special category for intimate offenses meant to protect the freedom of autonomy over a woman’s body, freedom and more than anything her respect as a human being....
The case before us clearly falls within the sex by fraud category. The Appellant presented himself as a high official in the Housing Department and as one who could easily help them get an apartment so that they he would have intercourse with him. Many times he succeeded and other times he did not. He used their problems; [victim] R.G. would not have … [had] sexual relations with him but for the chance to fulfill her wish and get her own apartment….
[Agreed to by all three judges.] [The defendant was sentenced to 10 years in prison plus 2 years on probation, but it’s not clear how much of this was premised on the forcible rape convictions and how much on the rape-by-fraud conviction.]
State v. Kashur, Jerusalem District Court (2010)
[Press accounts suggested that the decision here was apparently the result of a plea bargain; M.Z. alleged that Kashur had forcibly raped her, but Kashur and the prosecution agreed to his pleading guilty to rape by fraud. Other press accounts suggested that Kashur never actually told M.Z. that he was Jewish, but just used a Jewish-sounding nickname. Nonetheless, the court’s account suggests that M.Z. ultimately testified that she did consent, but based on defendant’s fraudulent representation that he was a Jewish bachelor who was interested in a serious romantic relationship; and defendant apparently conceded as much in court. Here is the court’s account. -ed.]
The defendant was convicted, based on his confession to the facts in the amended indictment that were consolidated into the plea bargain after hearing the evidence presented by the accuser, of committing the offense of rape and lewd acts under section 345(a)(2) ….
According to the amended indictment, on the date of September 3, 2008 at 1:00pm, in the building on 12 Hillel Street in Jerusalem ..., the defendant raped M.Z. [the accuser] ... and committed against her lewd acts as detailed below.
The defendant, who is married, fraudulently represented himself to the accuser as a Jewish bachelor who ... was interested in a serious romantic relationship. The defendant proposed that the accuser accompany him into the building and, on the basis of the false representation described, she agreed. The defendant ascended in the elevator with the accuser to the top floor of the building. In the elevator, the defendant groped the accuser, rubbed his penis against her body, lifted her shirt and bra and kissed her breasts. All this was done by the defendant with the consent of the accuser, which was achieved through deception by means of the false presentation.
When they arrived at the top floor of the building, the defendant removed the accuser’s pants and underwear and inserted his penis into her vagina until satisfaction. This too he did with consent of the accuser, who was convinced through fraud and deception to rely on the false representation described above. After the defendant had intercourse with the accuser and committed the lewd acts described, he exited the building and left her naked on the top floor of the building….
At the conclusion of the penalty phase, the prosecuting attorney stressed that the central fact that the defendant left the complainant naked on the top floor of the building illustrates the complex interaction between them that gave rise to this crime. However, the defendant emphasized that these actions were not performed by force.
Nevertheless, the defendant interfered with [M.Z.’s] ability to object by means of misrepresenting the facts of his personal situation — that he was single man interested in a serious relationship. Consequently, the defendant exploited the accuser’s desire for a deep emotional connection, for only on account of this did she agree to have intercourse with him. Therefore, the Probation Service report, with regard to mandatory elements, requests that the defendant be incarcerated for a significant period of time as compensation to the accuser….
There is no dispute that the defendant committed the crime of rape against the accuser, to this he confessed, and on the basis of this he was also convicted in court. It is clear to all, that the we are speaking of one of the most serious crimes in the criminal code, which carries a maximum penalty of extended incarceration and even a minimum prison term of 4 years.... However, before us is not a “classic” case of rape — a forceful one. And the complaint that was initially consolidated, which defined actual opposition by the accuser to the actions of the defendant, was amended in the course of proceedings, after hearing her testimony that clarified that [the defendant’s actions] were perpetrated with her consent but that [the consent] was acquired fraudulently in that she relied on his false representation. Specifically: had she not thought that the defendant was a Jewish bachelor who was interested in a serious romantic relationship, she would not have cooperated with him….
[As to sentencing], one must not forget that the crime of rape committed “on account of” false pretenses is what is being judged here.... I do not think that this is a situation in which to question the imposition of incarceration .... And not only for the maximum [suggested] by the defense in this regard — six months.... It is the obligation of the court to protect the public from sophisticated criminals with slick tongues and sweet lips, for with these tools they pillage innocent victims, imposing a price too heavy to bear — the sanctity of [the victims’] body and spirit. At a time when the basis of trust between people is weak, [and] all the more so when dealing with such intimate and sensitive matter, we are choosing fates. The court must stand forcefully and actively on the side of the victims to protect their interests. Otherwise, they will be exploited, manipulated, deceived, for the [mere] price of an acceptable, symbolic penalty.
It is impossible to know or understand fully how the accuser felt after the defendant exited the building and left her behind, naked, on the top floor…. In committing this [crime], the defendant demonstrated basic human insensitivity toward his victim, as though she was solely a means of satisfying his desires for himself, nothing more....
After deliberating on the considerations of the various punishments and weighing the unique attributes of this case, including the period of detention already served by the defendant — whether behind bars, or in the walls of his home (under electronic monitoring), including, as well, in the circumstances of this matter, those specific reasons that justify a lessening of his punishment — I advise my peers to impose on the defendant the following punishments based on the minimum penalties proscribed by law, most of which will be under suspended sentence, the delineation of which is as follows:
A.... [Eighteen] months in prison, less the days of his [prior] incarceration — October 5, 2008 to November 28, 2008.
B. Thirty months suspended sentence ....
C. Compensation to the accuser in the amount of 10,000 [shekels] to be paid in 10 equal monthly payments ....
[Agreed to by all three judges.]