“Rape by deception” in Israel

by Walter Olson on July 21, 2010

“A Palestinian man has been convicted of rape after having consensual sex with a woman who had believed him to be a fellow Jew.” [Guardian] Rape by deception is a crime in many although not all jurisdictions, with impersonation of a woman’s husband or lover being one classic fact pattern giving rise to charges; two years ago, in a debate over such a law in Massachusetts, critics expressed unease about which other sorts of misrepresentations might be reached as well [CBS News]

As for the civil-law side, a few years back (to quote from the manuscript of my forthcoming book Schools for Misrule):

a Northwestern law professor, building on the undeniable fact that many persons behave badly on the dating market, proposed as a remedy the development of a new tort of “sexual fraud,” which would allow lawsuits for cash damages against persons who use lies or insincerity to get others to sleep with them (“Of course I’m not married.”) It was one of the year’s most widely hailed and talked-about articles.

More: Max Fisher, Atlantic Wire (rounding up reactions); Eugene Volokh (including link to discussion of Massachusetts bill). And: comments from Andrew Sullivan’s readers.

{ 21 comments }

1 wfjag 07.21.10 at 9:05 am

Wouldn’t her failure to failure to perform a simple visual inspection to ensure the accuracy of the representation be a defense to a claim of deception?

2 Marni 07.21.10 at 9:45 am

And what simple visual exam would that be?

3 Walter Olson 07.21.10 at 9:51 am

My guess is that wfjag is not aware that male circumcision is considered equally obligatory under the rites of Judaism and Islam. If wfjag had something else in mind, though, I hope he/she will explain.

4 Marni 07.21.10 at 10:14 am

Yeah, that’s what I thought.

5 Frank 07.21.10 at 10:26 am

In a fictional US jurisdiction where rape by deception is a crime, could this be a cause of action? The argument of the victim is apparently racist or based on discrimination by national origin.

Would the government have to defend a person’s demand that their desire to commit racial/ethnic discrimination be supported by law?

I have to guess since this offense specifically includes consensual sex that it may be claimed by both sexes. I can see the civil suit now: “What do you mean Halle Berry is black? She never told me that. Had I known I would have never slept with her. She deceived me by her inaction.”

6 Bill Poser 07.21.10 at 11:03 am

This probably should be considered a form of fraud rather than rape, but I don’t see it as illegitimate because one may disapprove of the underlying attitude. Sex is one of the most intimate and personal of human activities. People are attracted and repelled for all sorts of reasons, many of which, whether ethnicity or physical attractiveness, would not be permissible as a basis for state action or acceptable as a basis for the provision of public accomodation. People ought to be able to choose their sexual partners on whatever basis they see fit.

7 Aaron Worthing 07.21.10 at 11:04 am

Frank

Let’s face it, at her current state of hotness, there is no cause of action for being “tricked” into sex with Halle Berry. Why? Because every cause of action requires you to prove you were damaged.

And crying for joy doesn’t count.

but yeah, i get your point.,

More seriously, I think if we enforced this, we would have to enforce even really racist or otherwise bigoted attitudes. i mean i practiced equality of opportunity in my dating life, in that i was rejected by women of all colors and creeds. But look if a black woman is only attracted to black men, who can we possibly say she is not allowed to have that preference? And likewise if she only likes white men, or asian men. and for that matter virtually everyone practices sex discrimination, etc. I mean you could have hung a sign above my bed: no men need apply. And there are people who would never date a handicapped person; and there are odd people who actually prefer them. And some who are just neutral.

So the real answer about all this prejudice that the law would have to enforce, is to say that this is a good reason not to have the cause of action at all. Because seriously who wants to have an inquest into the human heart?

8 Paul 07.21.10 at 12:04 pm

They introduced themselves and then had sex “in a nearby building.” Most women I’ve met who would be okay with that don’t have a religious preference.

9 wfjag 07.21.10 at 1:11 pm

“My guess is that wfjag is not aware that male circumcision is considered equally obligatory under the rites of Judaism and Islam. ”

Not true.

“Jewish law states that circumcision is a ‘mitzva aseh (“positive commandment” to perform an act) and is obligatory for Jewish-born males and for non-circumcised Jewish male converts.
***
In Islam, circumcision is mentioned in some hadith (it is referred as Khitan), but not in the Qur’an. Some Fiqh scholars state that circumcision is recommended (Sunnah); others that it is obligatory.”

http://en.wikipedia.org/wiki/Circumcision

Circumcision is also not required of converts to Islam. Id.

So while not a fool proof method, at least it’s a start.

Forgive my snarkiness. However, the case seems to be more one of “seller’s remorse” than deception. If religion was so important to her, then more than going off to a nearby hotel fairly soon after meeting should have been expected.

10 kat 07.21.10 at 4:20 pm

Various US jurisdictions criminalize rape by fraud. California is one of them. Generally, however, they are limited to fraud in fact (consenting to a medical examination, and having the examiner engage in sexual conduct) rather than fraud in the inducement (consenting to sex in reliance on a false representation that engaging in sex will cure a medical problem)

11 Bill Poser 07.21.10 at 5:10 pm

I don’ t think it is safe to assume that the woman’s preference is religious. It may have been ethnic rather than religious. People may want to have sexual relationships only with members of their own group, or at least not with groups considered hostile.

12 steve mansfield 07.21.10 at 9:26 pm

This is one of the most ludicrous things I have ever read. So the guy said he was Jewish but wasn’t . Using the logic of the court, does that mean if a guy tells a girl he loves her so she will sleep with him but, once the act is over he says he really doesn’t does that mean he has committed rape? Has the law gone so far as to make caddish behavior a felony? Under Israeli law does this conviction mean the guy has to register as a sex offender for life? As an interesting side point apparently they met and then proceeded to a building and did it; perhaps he should have claimed the slut defense.

13 Joe 07.21.10 at 10:52 pm

I think I’d kind of have to agree with Paul there.

14 Commentor 07.21.10 at 11:13 pm

I can sort of see a justification for the law based on fraud in the factum, i.e. fraud that completely destroys consent. An example would be stealing into someone’s room and posing as their husband. In contracts, it would be having someone sign something presented as an autograph but its really a contract.

Where I really have a problem with such a law is for fraud in the inducement, i.e. he told me he was a doctor. In such a situation, the person nevertheless had the intent to have sexual relations with that particular person.

15 Austin 07.22.10 at 7:46 am

Let’s say I only have sex with woman from who don’t have AIDS. An a woman says she doesn’t have AIDS, and so we have sex. I then later on find out SHE DID. Should that be grounds for “rape by deception?”

If I value the situation surrounding my consensual sex so much the burden is on me to check the facts before I engage, otherwise, I’m just being foolish.

~Austin

16 Kola 07.22.10 at 10:35 am

This is simply a recipe for more craziness. The guy told a lie. End of that story. At most he should be charged with fraudulent misrepresentation. But rape…i really wonder. If a man tells a woman that he lives in a $6million-a-year apartment and she has sex with him on this basis in a ‘nearby building’, is this also rape? or he tells her he just won the lottery and is later found to have lied…follow the thread…

17 Benji 07.22.10 at 11:05 am

@Austin: Not sure about rape, but – there have been cases where a person was HIV positive and knew this and continued having sex with new partners without telling them, and this was determined to be grounds for assault with a deadly weapon charges. The situation you described is horrible but it’s covered (fairly clearly to my knowledge) by existing assault law, while a rape charge in the same situation is a less clear matter.

18 Anonymous Attorney 07.23.10 at 1:46 pm

If a a white Christian woman were making this claim about a Jewish man, it would be pounced upon as pure, anti-Semitic evil. Abraham Foxman would be tearing his clothes off in the middle of the street.

19 Bill H 07.23.10 at 6:50 pm

If a a white Christian woman were making this claim about a Jewish man, it would be pounced upon as pure, anti-Semitic evil. Abraham Foxman would be tearing his clothes off in the middle of the street.

Thanks, but I really don’t need visuals. :)

20 David Schwartz 07.24.10 at 2:39 pm

Why would she care about the religion of guys she has one night stands with? I understand why a person might care about the religion of someone they marry as it bears on issues of couple perception, child rearing, and so on.

There is simply no way she can plausibly claim any connection between the deception and the sex. A person who applies for a job at McDonald’s as a cashier isn’t rationally concerned about how much money he can make if he gets promoted to CEO. Nobody chooses their summer job on that basis.

21 Justin 08.05.10 at 6:33 am

From the various articles I have read, it seems that the Judge pronounced on the aspect of him claiming that he was single, when in fact he was married.

This puts a slightly different aspect on it and may even be welcome as a deterient to all those marries peopleout there that deny it and hit on a person who wants a serious relationship and then later find out that they were lied to and hurt. many of those would never have had sex with a married person. In these cases I could almost see the rape by deception justification.

However, in this circumstances, in all the articles I have read and all the reports, they all agree that she cried rape on finding out that he was an arab and not a Jew. And 15 min from meeting they had sex.

Sorry, I think she had one think on her mind and was just offended that the guy she was so hot for turned out to be an arab and that’s not rape, that’s racism.

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