Getting Money or Sex by False Statements:

The "rape by fraud" issue noted below does raise some interesting conceptual questions, for instance "Why do we make it a crime to take property when consent is gotten through fraud, but not to get sex when consent is gotten through fraud"? But while I think the "why" is interesting and important, the bottom line strikes me as clear: There is likely to be much more injustice and suffering if the criminal law were to police a vast range of lies and concealments in sexual relationships than if the criminal law stayed out of this.

Moreover, I should note that when people get property by lies that yield a marriage, that may well not be criminal or even civilly actionable. Consider, for instance, Askew v. Askew, 22 Cal. App. 4th 942 (1994), where a court rejected a man's claim that his wife had defrauded him by marrying him without ever having loved him or been attracted to him:

Ronald testified there were "numerous discussions" with Bonnette about "passion, desire or physical attraction" before their marriage. Bonnette said (in Ronald's words) "that she loved me. That she had this lust, this passion, this desire. That I could trust her. That I could believe in her." Later he testified that Bonnette "described the passion as being this-this-this-this-love. This-this sexual desire. This-this strong commitment. This great endorsement for me as a person." She also said, "I am honest with you. I will always be honest with you. You can trust me. You can believe in me. I will not lie to you." Many times Ronald asked her to tell him "if there's anything I should know about our marriage, or anything about our relationship, be honest with me. Tell me. Tell me before the marriage." Bonnette said there was "nothing" Ronald "need[ed] to know."

Ronald then testified he relied on these statements in transferring the five properties "into [his and] her name [jointly]." But he would not have transferred the properties if he had "known the truth" (referring to the revelations from the 1991 counseling session) that he knew "now" — i.e., that she really had no desire for him "physically" or "sexually," that she had no "passion" for him prior to the marriage, or "during" the marriage....

Bonnette was called as part of Ronald's case-in-chief. She admitted that she did not have sexual desire for Ronald prior to or during the marriage, even though she "may," at one point "early on in the relationship," have told Ronald that the two of them had a "very satisfying" sexual relationship. Ronald also called a friend of the Askews who testified that in about 1989 while at dinner at a local restaurant Bonnette told her that she did not love Ronald when they first got married.

Had this been a normal commercial relationship and the misrepresentations had been about ordinary commercial matters, the conduct likely would have constituted actionable fraud (and perhaps even criminal fraud). But the court read the state statutes abolishing the breach of promise of marriage and similar causes of action broadly:

At this point the policy behind the anti-heart-balm statutes bears some elaboration. Plainly, these statutes not only preclude certain "old fashioned" causes of action, but also embody a basic reluctance on the part of both the Legislature and the judiciary to allow recovery for promises of love. This reluctance stems, no doubt, from the sheer unseemliness of litigating tender matters of romantic or sexual emotion in courts of law. Using the courts to distinguish "between a false statement of one's feelings and a change in those feelings" presents, in Judge Posner's phrase, "exquisitely difficult" problems of proof....

Words of love, passion and sexual desire are simply unsuited to the cumbersome strictures of common law fraud and deceit. The idea that a judge, or jury of 12 solid citizens, can arbitrate whether an individual's romantic declarations at a certain time are true or false, or made with intent to deceive, seems almost ridiculously wooden, particularly where the statements were made prior to marriage and the marriage lasted more than 13 years. "The judiciary should not attempt to regulate all aspects of the human condition. Relationships may take varied forms and beget complications and entanglements which defy reason." Love has been known to last a lifetime, but it has also been known to be notoriously evanescent. These are matters better left to advice columnists than to judges and juries....

Seems quite right to me — and imagine what would happen if people could sue not just over "I love you" marriage fraud, but also "She told me I was only her second lover" marriage fraud, or similar forms of fraud as to nonmarital sexual relationships. Or (to return to the preceding post) imagine such behavior could be made into a crime, either on the theory that the lie led to a transfer of property in the marriage or the love affair, or that it led to the sex in the first place.

Related Posts (on one page):

  1. Getting Money or Sex by False Statements:
  2. Cheating on One's Lover = Future Felony in Massachusetts?

There is likely to be much more injustice and suffering if the criminal law were to police a vast range of lies and concealments in sexual relationships than if the criminal law stayed out of this.

Is this the same bottom line as in Askew? Askew seemed to view the evidentiary difficulties as paramount, i.e. if there were a way to determine whether feelings/expressions were sincere, then the court might allow a cause of action for this sort of thing. Is this what you mean? I take it you don't mean this, because later you say, "imagine what would happen if [some situation]," and the implication, I guess, is that the problem is not evidentiary but substantive.
5.5.2008 3:54pm
Katl L (mail):
In Latiamerican countries is a fellony to seduce a woman , older tah 16 and younger than 21 , with a false marriage promise
5.5.2008 3:55pm
Dilan Esper (mail) (www):
I think that the rise of feminism adds an additional reason why we don't want to criminalize "fraudulent" statements in the sexual arena. Feminism has done a great job of discrediting silly traditional views about sex, including the idea that women inherently don't want sex, it is something they give up not freely but to get other benefits (marriage, family stability) from men, and that once a woman gives up sex (especially the first time), she is stained and soiled by the experience.

In a world governed by those assumptions, female sexuality is almost like a piece of property, and obtaining that property through fraud seems like a really big issue. But once we accept that women have sexual desires, they enjoy sex, they can have it over and over again without being stained and soiled, and they choose to have sex for pleasure and not in exchange for other consideration, then lying to get sex, while still disreputable, doesn't cause the type of injury that requires redress.
5.5.2008 4:11pm
Ventrue Capital (mail) (www):
IIUC this is why there used to be a tort for Breach of Promise.

I believe it was David Friedman who suggested that the custom of an expensive engagement ring -- the rule of thumb is three months' salary, of course -- was created as a replacement when courts stopped awarding damages for Breach of Promise.

What does Posner's _Sex and Reason_ say about this issue? My copy is temporarily unavailable.
5.5.2008 4:12pm
James Ellis (mail):
I agree with Prof. Volokh's overall observations, but I find a lot of this pretty ironic. We are more than willing to submit international antitrust disputes, intellectual property litigation, white collar securities crime and other arcane disputes to a jury where anyone with any expertise or proficiency in the area has generally been weeded out early in the process. Here, it seems that a jury would actually bring a lot to the table in terms of sorting out these disputes.

And I'm not really sure that I buy into the thought that the nature of the promise somehow makes it more difficult to ascertain the state of mind of the person who entered into it. And even if some cases devolve into "I thought I loved him but he changed/I changed etc.," (no recovery) we still have the occasional "I never loved him, I just wanted Blackacre" case. That to me is a much tougher one.

We have a comprehensive Lemon Law to make sure that our expectations in buying a car aren't frustrated, but we enter into the most important contract of our lives without protection. Could it be that the driving force behind the automobile, mortgage, securities and other statutory schemes (encourage full and material disclosure) doesn't really apply to marriages? Maybe we don't want to encourage full discosure, nor reliance on any specific disclosures. You take your chances, and divorce is your "remedy," not cash damages.

Bear in mind that, while there is no civil or criminal penalty for defrauding someone into marrying you, it is sometimes illegal to tell them the truth. "I am willing to marry you, and maybe to pay you for that privilege, but only because I want to stay in this country" is one such example. In those circumstances, "I love you" seems a very foreseeable fallback position.
5.5.2008 4:13pm
"imagine what would happen if people could sue .. over... "She told me I was only her second lover" marriage fraud"

A better world?
5.5.2008 4:16pm
Jim Rose (mail) (www):
Here is New York's statute abolishing the tort of breech of promise,New York Civil Rights Law §80-b. "Nothing in this article contained shall be construed to bar a right of action for the recovery of a chattel, the return of money or securities, or the value thereof at the time of such transfer, or the rescission of a deed to real property when the sole consideration for the transfer of the chattel, money or securities or real property was a contemplated marriage which has not occurred, and the court may, if in its discretion justice so requires, (1) award the defendant a lien upon the chattel, securities or real property for monies expended in connection therewith or improvements made thereto, (2) deny judgment for the recovery of the chattel or securities or for rescission of the deed and award money damages in lieu thereof."
5.5.2008 4:26pm
Eugene Volokh (www):
swg: I think the problems are sometimes evidentiary, and sometimes substantive; both sorts of problems, put together, are a pretty strong argument against the law.
5.5.2008 4:35pm
PatHMV (mail) (www):
James Ellis... I think there's a HUGE difference between leaving financial matters up to any variety of tribunals and leaving personal liberty and incarceration up to the whims of a jury.

Philosophically speaking, commercial transactions are not terribly "private." We conduct them, quite often, with people we don't like and don't necessarily trust. Even for the wealthiest, commercial transactions with loved ones account for a small minority of the total number of commercial transactions in which one engages. Thus, we have no problem involving the law in sorting out our commercial disputes. It doesn't have much impact on our dignity or privacy.

But sexual relations are, for the vast majority of folks, inherently private. The animal sex drive is a powerful thing, even in civilized human beings. Involving the law into it in all but the most clearly wrong circumstances would substantially invade our privacy and impact our dignity.

Moreover, sex is highly emotional for most people. People who feel they've been jilted have very strong emotions, which has in the past been demonstrated to result, too often, in lies aimed at getting back at the jilter. We do not need to create any additional incentives or avenues for people to retaliate against former sex partners.

Worse, think of the defensive strategies this would force upon any rational person! A candid camera show I saw recently featured an actor pretending to be an attorney meeting a blind date on behalf of their client, and wanting the blind date to sign some forms before the client came out. That should remain a joke, not reality. "Please sign here to indicate that I admitted to you that I am unemployed and penniless, living at home with my parents, before we have sex, will you?" Yikes!
5.5.2008 5:10pm
Skyler (mail) (www):
Marriage: The last refuge of caveat emptor.
5.5.2008 5:27pm

Seems quite right to me — and imagine what would happen if people could sue not just over "I love you" marriage fraud, but also "She told me I was only her second lover" marriage fraud, or similar forms of fraud as to nonmarital sexual relationships.

I imagine the voir dire could be really interesting:

"Have you ever faked an orgasm?"
5.5.2008 5:41pm
Mike S.:
Apply it within a marriage--"you look great tonight honey" could be grounds for imprisonment.
5.5.2008 6:13pm
common sense (www):
Since SCOTUS has continued to expand privacy in the bedroom, first with married couples and now to any adults, Mass. is going to intrude?
5.5.2008 6:53pm
YAY! I agree with Dilan Esper! It was only a matter of time.

"Darling, I will give you the moon and the stars..."

"Where are they? ...Fraud!!"
5.5.2008 7:16pm
David Schwartz (mail):
Smokey: Puffing is not fraud.
5.5.2008 8:34pm
Nathan Hayes (mail):
How would age of consent play into this? A child under the age of consent, tells a person 17 years old (or whatever age in a particular state), that they are in fact of age....Would both be committing a felony?
5.6.2008 10:35am
Fantastic! This is the revival of an ancient cause of action in the ecclesiastical courts. In a "marital" or "matrimonial" action, one could sue (in what is called an "instance cause" (the ecclesiastical term for civil actions) for specific performance of a marriage contract if consideration was given, but the Church courts specifically excluded promises of future consideration from the cause of action. So, much as above, the man who slept with his lover under the false pretense that he entered into a binding agreement to marry her could be sued for specific performance. Quite a lot of litigation was had concerning the tense and mood of the verbs used by the man (it was usually, but not always, a woman who sued). As this sort of revival continues, I look forward the detailed discussions of the "utinam/ut" problem by state judges!
5.6.2008 12:01pm