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Cheating on One's Lover = Future Felony in Massachusetts?

That's what would happen under a proposed statute that's being promoted by Massachusetts state representative Peter Koutoujian, and is being supported by District Attorneys Joseph D. Early Jr. and Gerard Leone.

I suspect that this isn't the goal of the drafters, but that's what the language would call for, when (as I'm pretty sure happens quite often) the cheater has sex afterwards with the regular lover without disclosing the cheating. Here's what the proposed law says:

Whoever has sexual intercourse or unnatural sexual intercourse with a person having obtained that person's consent by the use of fraud, concealment or artifice, and who thereby intentionally deceived such person so that a reasonable person would not have consented but for the deception, shall be punished by imprisonment in the state prison for life or any term of years. As used in this statute, 'fraud' or 'artifice' shall not be construed to mean a promise of future consideration.

The law was apparently proposed in response to some recent fraudulent-sex incidents, one in which a man had sex with his brother's near-sleeping girlfriend pretending to be his brother, and one in which a medical technician conducted an unnecessary pelvic exam (with his fingers, I think) after having pretended to the woman that it was necessary and that he was trained and licensed to perform such exams. But it goes much further than that: Any time someone has consensual sex (1) having gotten the consent through (a) lying or (b) concealment, and (2) a jury (or perhaps a judge) concludes that "a reasonable person would not have consented but for the deception," that's a felony, labeled as a form of rape. Promises ("I'll marry you") are excluded, but other statements — or silences — are not.

So let's see how it plays out in the cheating situation. Alan and Beth are lovers. Beth has sex with Carl. She doesn't tell Alan (or, if Alan confronts her about his suspicions, denies it — that doesn't matter for purposes of the law), but then has sex with Alan again. That, under the law, is rape, so long as the jury or judge concludes that a reasonable person wouldn't have consented to have sex again with his lover had he known that she had cheated on him. Naturally, the same would apply with married couples, but this isn't even just a revival of criminal punishment for adultery — there's no requirement of marriage. (Note of course this would apply regardless of the sex, or sexual orientation, of the partners.)

The same could of course arise in lots of other contexts. A woman conceals from a prospective lover the fact that she'd been a prostitute, or even had had a lot of sexual partners. When they have sex, under the proposed law the man will have been raped as a result — depending, of course, on whether the jury or judge decides that a reasonable person would care about a lover's past prostitution, or even a lover's past promiscuity. (Let's assume that she doesn't have any sexually transmitted disease; there are some narrow laws that mandate revealing STD's to prospective lovers, but those are indeed limited to revealing STD's and preventing the spread of disease. They certainly don't cover all things that a reasonable lover might consider in deciding whether to have sex.)

Likewise if a man (or a woman) gets sex by falsely saying "I love you" (as opposed to "I will always love you" or "I will marry you," which is excluded), again if a jury finds that a reasonable person would have considered this. Same if someone gets sex by lying about his or her wealth or his or her age.

And of course all this would require the case-by-case, jury-by-jury development of the Law of Reasonable Sexual Criteria, as Massachusetts courts have to decide whether a reasonable person would treat a sexual partner's poverty, age, promiscuity, infidelity, and other attributes as sexual deal-killers. (Would it matter, by the way, how appealing the other person otherwise is? Would the jury have to decide whether the "victim" would have had sex with the "rapist" in any event, because the victim was so infatuated, or because the rapist was so hot? "True, Angelina Jolie didn't tell the victim that she was still in a sexual relationship with Billy Bob Thornton, but a reasonable man would have had sex with Angelina Jolie no matter what he knew about her"?)

Just awful. I do think some kinds of sexual frauds could properly be criminalized, for instance if the defendant impersonated some other specific person whom the victim knew, or if the defendant lied about having a serious sexually transmitted disease (or even concealed such a disease), or if the defendant lied about whether certain sexual contact was necessary for medical purposes. But these would be narrow and precisely drafted laws, which would cover a small range of clearly highly reprehensible and unusual conduct, and would not cover behavior that is either proper protection of privacy (e.g., not revealing one's sexual history) or that is an extremely common human failing (e.g., cheating).

UPDATE: Commenter Arkady hints at another hypothetical: Woman fakes orgasms, or more broadly tells the man that he's a great lover. Man says that he wouldn't have continued having sex with her if he'd known that she wasn't having orgasms -- or that he wouldn't have continued having sex with her if he'd known that she was willing to fake something like that, or to lie about his prowess. A prosecutor claims that a reasonable person would indeed have reacted the way this man says he would have reacted. The jury, or the judge deciding on a motion to dismiss, is supported to decide whether a reasonable person (not the average person, mind you, but a reasonable person) would have reacted this way. How on earth is a jury or a judge to make that legal decision?

Related Posts (on one page):

  1. Getting Money or Sex by False Statements:
  2. Cheating on One's Lover = Future Felony in Massachusetts?
SIG357:
shall be punished by imprisonment in the state prison for life or any term of years.

That seems almost comically vague as to the punishment. "For life, or any term of years". Nice of them to narrow it down like that.

I suppose guys who lie to women in bars ("What do I do? Umm, I'm a doctor") will all be spending the rest of their life in jail.
5.5.2008 3:30pm
Sasha Volokh (mail) (www):
I suppose even if they strike out, it's still attempt.
5.5.2008 3:34pm
Anderson (mail):
Whoever has sexual intercourse or unnatural sexual intercourse with a person having obtained that person's consent by the use of fraud, concealment or artifice

Make-up is now to be illegal in Massachusetts, as are Wonderbras and those ass-padding panties.
5.5.2008 3:34pm
Stryker (mail):
OK, let's take a hypothetical 25 yr old Tom and 16 year old Suzy. Suzy tells Tom she is 19, and they have sex. In both Texas and Mass, this is rape.
In Texas, she's the victim, in Mass, he is. Makes sense to me!
5.5.2008 3:35pm
The Unbeliever:
Did they just outlaw the greater bulk of barroom pick up lines?
5.5.2008 3:41pm
Carolina:
This is a strong argument for those systems where the state legislature meets only for 2-3 months every couple of years.
5.5.2008 3:44pm
Anderson (mail):
The real question is, what personal stake does Mr. Koutoujian have in this proposal?

He sounds like a man with a story to tell.
5.5.2008 3:51pm
Snitty:
On a side note, adultery is still a felony in MA, and sex before marriage is a misdemeanor.

That being said, the law is a little over broad. And I'm not prepared to trust a DA not to prosecute it when it's not really appropriate.

I wonder what, if any, first amendment defenses arise?
5.5.2008 3:51pm
Ex parte McCardle:
To quote the immortal Thornton Mellon: "Come on, Jason, you don't lie to me. You lie to girls."
5.5.2008 3:54pm
PatHMV (mail) (www):
Actually, Carolina, I think it's an argument for the opposite. It sounds like the law may be well-intentioned, given the 2 particular examples cited in the post. It should indeed be criminal to pretend to be a woman's husband or lover in order to trick her in to having sex with you, and it should indeed be criminal to pretend to be a nurse or doctor, or to pretend that a procedure is necessary, in order to touch a woman sexually.

The problem is not the intention of the law, but its breadth. That's a problem of poor drafting, not thinking through the consequences of the language. Thus, it more likely a product of inexperience.

Of coures, Rep. Koutoujian has been in office for 11 years, so he ought to know better by now (not to mention a law degree and even a Master's Degree in Public Affairs from Harvard). Maybe the good staff member was gone the day this bill was drafted.
5.5.2008 3:57pm
The Unbeliever:
That being said, the law is a little over broad. And I'm not prepared to trust a DA not to prosecute it when it's not really appropriate.


Nonsense. I look forward to the first case that goes to court where the man obtained sex "by fraud" after bragging about his, er, bedroom prowess. A prosecutor could make quite a name for his- or herself arguing the finding of facts in that case...
5.5.2008 3:59pm
SIG357:
Make-up is now to be illegal in Massachusetts

Life for wearing lipstick.
5.5.2008 4:03pm
A. Person (mail):

Of coures, Rep. Koutoujian has been in office for 11 years, so he ought to know better by now (not to mention a law degree and even a Master's Degree in Public Affairs from Harvard). Maybe the good staff member was gone the day this bill was drafted.


You should have made clear (for it woudl seem to be very relevant here) that his law degree is not from Harvard; it is from the New England School of Law.
5.5.2008 4:12pm
Jay:
"You should have made clear (for it woudl seem to be very relevant here) that his law degree is not from Harvard; it is from the New England School of Law."

Right, because no one with a Harvard Law degree would ever have a crazy political idea.
5.5.2008 4:17pm
Bob from Ohio (mail):

You should have made clear (for it woudl seem to be very relevant here) that his law degree is not from Harvard; it is from the New England School of Law.


Why relevant?

Because no stupid law has ever been proposed by a Harvard Law grad?

Because if you go to a low rank school, you are per se an idiot?
5.5.2008 4:19pm
Sean O'Hara (mail) (www):
So if a married man tells a woman he's single to get her into bed, then he lies to his wife about it, he's subject to two life sentences?
5.5.2008 4:27pm
Randy R. (mail):
Massachusetts? I'm sure gays will get blamed for this one too....
5.5.2008 4:30pm
Houston Lawyer:
I know a number of men who'd like to be able to sue their ex-wives based upon the they way they acted before and after they said "I do".

Do many states make it a crime not to disclose an STD to an intended sex partner? I like the idea, but I don't believe it to be a common law.
5.5.2008 4:33pm
Virginian:
It seems to me that the med tech that performed the pelvic exam could easily be prosecuted under existing sexual battery laws, as the consent was fraudulently obtained.

Then again, I'm a patent lawyer so what the hell do I know about crim law.
5.5.2008 4:37pm
MrObvious:

OK, let's take a hypothetical 25 yr old Tom and 16 year old Suzy. Suzy tells Tom she is 19, and they have sex. In both Texas and Mass, this is rape.
In Texas, she's the victim, in Mass, he is. Makes sense to me!

No, in Mass they're both victims. Tom gets 5 years for statutory rape (being lied to is not a defense) and Suzy gets life in prison for rape via deception.

It's strange, they both seemed so happy before realizing they were such vile criminals.
5.5.2008 4:43pm
Brooks Lyman (mail):
Randy R. - Surely not! This law hits everyone. And given that it's Massachusetts, it must be some Rip-van-Winkle puritan woken up from the long sleep and shocked - Shocked! - at the state of affairs.
5.5.2008 4:47pm
Jonathan F.:
OK, let's take a hypothetical 25 yr old Tom and 16 year old Suzy. Suzy tells Tom she is 19, and they have sex. In both Texas and Mass, this is rape.

In Texas, she's the victim, in Mass, he is. Makes sense to me!

No, in Mass they're both victims. Tom gets 5 years for statutory rape (being lied to is not a defense) and Suzy gets life in prison for rape via deception.

It's strange, they both seemed so happy before realizing they were such vile criminals.
There was an article about this very situation a year or so ago in the Northwestern Law Review. Russell L. Christopher &Kathryn H. Christopher, Adult Impersonation: Rape By Fraud as a Defense to Statutory Rape, 101 Nw. U. L. Rev. 75 (2007).
5.5.2008 5:19pm
Fub:
Eugene Volokh wrote, May 5, 2008 at 2:13pm:
I do think some kinds of sexual frauds could properly be criminalized, for instance if the defendant impersonated some other specific person whom the victim knew, ...
and

PatHMV wrote at 5.5.2008 2:57pm:
It should indeed be criminal to pretend to be a woman's husband or lover in order to trick her in to having sex with you, ...
Are there any cases, or even credible press reports, of this degree of deception?

I can believe that cases exist of someone pretending to be another person (say, a famous person, or even a person not personally known to the victim, but admired). I can believe even that cases exist of someone pretending to be the victim's long lost spouse, unseen for decades.

But the degree of imperception (or extremely well implemented deception) seems implausible for someone to mistake another person for one's spouse one night, when the spouse was last seen leaving for the office that morning.

Yet that is the degree of deception that these sorts of laws suggest. Any examples of actual cases that extreme would be enlightening.
5.5.2008 5:38pm
Eugene Volokh (www):
Well, the case I referred to in the post is Suliveres v. Commonwealth. Here's the statement of facts from the opinion:
We turn now to the facts of the present case, viewed in the light most favorable to the Commonwealth. On the night in question, the defendant had sexual intercourse with the complainant by impersonating her longtime boy friend, his brother. According to the complainant, while she was asleep alone in the bedroom she shared with her boy friend, the defendant entered the room, and she awoke. In the dark room, the complainant assumed that the defendant was her boy friend returning home from work, and addressed him by her boy friend's name. He got into the bed and had intercourse with her. The complainant was "not fully awake" at the time of penetration. During the intercourse, she believed that the man was her boy friend, and had she known it was the defendant, she "would have never consented."

The defendant was indicted for rape and tried before a jury in the Superior Court. At trial, the main issue was whether the complainant knew at the time the identity of the person with whom she was having sex. The defense was that the sex was fully consensual. The defendant told an investigating police officer that the complainant had come to him while he was asleep in another room and had invited him to her bedroom to have sex with her. The Commonwealth argued that the defendant had procured the complainant's consent to sex fraudulently by impersonating her boy friend.

Procedural history. The defendant moved for a required finding of not guilty at the close of the Commonwealth's evidence, but the motion was denied. The jury were unable to reach a verdict, and the judge declared a mistrial. he defendant then moved to dismiss the indictment, arguing that the Commonwealth had failed to present sufficient evidence to support a guilty verdict at trial, and that any subsequent retrial would thus violate common-law principles of double jeopardy. When this motion was denied, the defendant sought relief from a single justice of this court .... The single justice reserved and reported the case to the full bench.
So at least some jurors were persuaded that the complainant's story was true beyond a reasonable doubt.
5.5.2008 5:46pm
lonetown (mail):
BTW Petes a dem FWIW.
5.5.2008 5:47pm
Anderson (mail):
Are there any cases, or even credible press reports, of this degree of deception?

Depends on how you mean:

Now make you ready, said Merlin, this night ye shall lie with Igraine in the castle of Tintagil; and ye shall be like the duke her husband, Ulfius shall be like Sir Brastias, a knight of the duke's, and I will be like a knight that hight Sir Jordanus, a knight of the duke's. But wait ye make not many questions with her nor her men, but say ye are diseased, and so hie you to bed, and rise not on the morn till I come to you, for the castle of Tintagil is but ten miles hence; so this was done as they devised. But the duke of Tintagil espied how the king rode from the siege of Terrabil, and therefore that night he issued out of the castle at a postern for to have distressed the king's host. And so, through his own issue, the duke himself was slain or ever the king came at the castle of Tintagil.

So after the death of the duke, King Uther lay with Igraine more than three hours after his death, and begat on her that night Arthur, and on day came Merlin to the king, and bade him make him ready, and so he kissed the lady Igraine and departed in all haste. But when the lady heard tell of the duke her husband, and by all record he was dead or ever King Uther came to her, then she marvelled who that might be that lay with her in likeness of her lord; so she mourned privily and held her peace.


Malory, Morte d'Arthur 1.2.
5.5.2008 5:49pm
Gaius Marius:
Hmmmm...I knew a couple of twin brothers who played a nice, little trick on a girl in my class. One of the brothers hid in the shower while the other brother would take his turn with the girl. The brothers switched places a few times throughout the evening and the girl didn't realize what was going on and just thought the one brother had incredible stamina.
5.5.2008 6:01pm
Marc J. Randazza (mail) (www):
You may enjoy my post on this:

In the criminal context: Pickup Line Quagmire in Massachusetts

And in the Civil Context: "Intentional Sex Torts"
5.5.2008 6:01pm
Random (mail):
I suppose New Hampshire can expect a sex tourism boom in the near future.
5.5.2008 6:17pm
Marc J. Randazza (mail) (www):
I doubt that this will pass. The world just couldn't have turned that loony.
5.5.2008 6:26pm
Joe Bingham (mail):
I'm reminded of the reeve's tale (Chaucer).
5.5.2008 6:26pm
Stryker (mail):

Jonathan, it's a good article. Favorite quote so far...

"For example, in People v. Whitten, an Illinois court defined knowing consent as "a willingness, voluntariness,
free will, reasoned or intelligent choice . . . unclouded by fraud, duress, or mistake."183" (p30)

So if I call it a mistake, it was rape? I really thought she was a nice girl, but what a B$%#* she turned out to be. musta been rape.
5.5.2008 6:30pm
LM (mail):
Honesty as prerequisite to sex? That's one form of birth-control nobody will tolerate.
5.5.2008 6:46pm
theobromophile (www):
But the degree of imperception (or extremely well implemented deception) seems implausible for someone to mistake another person for one's spouse one night, when the spouse was last seen leaving for the office that morning.

Er... you're obviously not a sleepwalker.

Woman fakes orgasms, or more broadly tells the man that he's a great lover. Man says that he wouldn't have continued having sex with her if he'd known that she wasn't having orgasms

Men care about whether or not women enjoy it?!?
5.5.2008 7:00pm
Roger Schlafly (www):
Man starts to make love to his wife. Wife asks if he remembered to take out the garbage. Man falsely says "yes". Man guilty of rape in Mass., and could serve life sentence. Bad idea.
5.5.2008 7:05pm
PatHMV (mail) (www):
Yes, Theo, a few of us actually do! :p
5.5.2008 7:41pm
theobromophile (www):
Note to self: check Evidence grade. ;)
5.5.2008 7:44pm
Fub:
Eugene Volokh wrote at 5.5.2008 4:46pm:
Well, the case I referred to in the post is Suliveres v. Commonwealth. Here's the statement of facts from the opinion:
Thanks much for the link.

It seems a bit far fetched to me to consider the complainant's act a mistaken identification, in the sense that she had diminished capacity or no capacity to make the identification. So it was as much a reflexive response when incapacitated as it was what we ordinarily think of as error caused by active deception.

Many people have had the experience when wide awake of seeing someone and briefly mistaking them for someone else. But that mistake seldom goes past a thought quickly dispelled by a second look. Sometimes it goes so far as greeting the person and then realizing they are someone else when they respond. It is the extreme perseveration of such a waking state error by active masquerading that I was questioning.
5.5.2008 7:47pm
Eugene Volokh (www):
Theobromophile: The question is whether reasonable men care about it.
5.5.2008 7:59pm
LM (mail):
Isn't our ability to procure sexual consent by guile what separates us from the savages?
5.5.2008 8:28pm
theobromophile (www):
EV - reasonable or average (i.e. typical)?
5.5.2008 10:15pm
Eugene Volokh (www):
Theobromophile: According to the proposed law, "reasonable."
5.5.2008 10:49pm
Clyde:
What about potential liability for the wingman? Could intentionally misrepresenting a friend's attributes at a bar (with the aim of making that friend appear more appealing to potential mates) result in an aiding and abetting charge?
5.6.2008 9:57am
JimF:

This would outlaw use of cosmetics.
5.6.2008 10:55am
J. F. Thomas (mail):
This would outlaw use of cosmetics.

Cosmetics? I think the use of beer googles would be actionable. Wake up with an ugly girl who was pretty the night before and claim rape. At least the threat of legal action would prevent her from calling you again.
5.6.2008 11:53am
David Chesler (mail) (www):
LM for threadwinner.
5.6.2008 12:35pm
FWB (mail):
This has to be reason number 210 NOT to live in Mass.

This is the problem with people today. To damn noisy. Getting into eferyone's business and trying to legislate morality. Why not just put everyone in a glass bell hooked up to some narcotic food juice of some sort and leave us to all veg out. They can make new humans in testubes and connect them up to the power grid.

Oh, yeah. That's the Matrix.
5.6.2008 2:44pm
EIDE_Interface (mail):
FWB:

You just said out loud where it's all going. It had to be said! Too many humans are incapable of leaving other humans alone!
5.6.2008 6:39pm
David Chesler (mail) (www):
I thought I posted this yesterday. Others have posted recent and historical deceits/impersonations. I blogged about the poorly reported rape-by-deception case here, when the story was reported in early February.

In that case a pharmacist was accused of deceiving a woman by claiming he was a gynecologist and "raping" her in the back office of his pharmacy. (I suspect from the details that this was not genital intercourse, so even if he were convictable, there are legal technicalities on both sides.) I suspect it was not "I am a gynecologist, which is a kind of real doctor, and I've only been working at this pharmacy for 30 years because I like the hours better, so let's go in back and have sex" but rather "Would you like me to take a look at that rash? If you'd like me to do it someplace more private we can go back here."
5.6.2008 7:06pm