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Rape by Fraud?

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FeatherFall
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http://www.guardian.co.uk/world/2010/jul/21/arab-guilty-rape-consensual-sex-jew

This story is about an Arab man who lied about being a Jew to convince a Jewish woman to have sex with him. It looks like he's facing jail time. Of course his actions were immoral, but should they be illegal?

The woman apparantly decided to have sex with this guy the night she met him because he said he was a Jew seeking a serious relationship. I understand that verbal contracts have some measure of legal weight in certain circumstances, but this seems a bit ridiculous to me. This is the kind of lie that is easily ferreted out by engaging in a serious relationship before getting into bed. Are we going to put every person who says he is a doctor, a lawyer or an artist in jail? What about people who lie about being single? Where does this madness end?

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http://www.guardian.co.uk/world/2010/jul/21/arab-guilty-rape-consensual-sex-jew

This story is about an Arab man who lied about being a Jew to convince a Jewish woman to have sex with him. It looks like he's facing jail time. Of course his actions were immoral, but should they be illegal?

The woman apparantly decided to have sex with this guy the night she met him because he said he was a Jew seeking a serious relationship. I understand that verbal contracts have some measure of legal weight in certain circumstances, but this seems a bit ridiculous to me. This is the kind of lie that is easily ferreted out by engaging in a serious relationship before getting into bed. Are we going to put every person who says he is a doctor, a lawyer or an artist in jail? What about people who lie about being single? Where does this madness end?

This is a terrible abuse of justice.

As you've already pointed out if the woman placed enough value on herself to bother having any kind of relationship to this man prior to having sex with him his lie would have been easy enough to discover.

Rape is a very real and horrible act. To apply it to something wholly consensual degrades its meaning.

Personally I think the woman should be flogged for having sex with a stranger and then crying rape.

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Awright, so let's look at the relevant moral and legal concepts. "Fraud" refers to obtaining anything of value by deception regarding a material fact. For example, if you willingly and of your own free choosing give $1,000 to a banker, who promises to put that money in a savings account, but he actually just keeps the money and runs away. His actual plan to keep the money and run away is a material fact: if you had know that he was planning to keep the money and run away, you would not have given him the money. The crucial elements are that as the perpetrator of a fraud you know that the fact is false and you know the victim will act on the basis of your representation of the fact. In this case, we must conclude that this was definitively fraud. Fraud is, in fact, a crime, and the basis is that the perpetrator takes something that the victim must give willingly, and consent was premised on a condition that was not satisfied (thus, it is a violation of the victim's rights).

Fraud can always be avoided, by a rigorous application of caveat emptor. I think you should carefully consider the consequences of a society where contracts were unenforcible, because saying "I never intended to provide the goods" becomes a defense against fraud.

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Awright, so let's look at the relevant moral and legal concepts. "Fraud" refers to obtaining anything of value by deception regarding a material fact. For example, if you willingly and of your own free choosing give $1,000 to a banker, who promises to put that money in a savings account, but he actually just keeps the money and runs away. His actual plan to keep the money and run away is a material fact: if you had know that he was planning to keep the money and run away, you would not have given him the money. The crucial elements are that as the perpetrator of a fraud you know that the fact is false and you know the victim will act on the basis of your representation of the fact. In this case, we must conclude that this was definitively fraud. Fraud is, in fact, a crime, and the basis is that the perpetrator takes something that the victim must give willingly, and consent was premised on a condition that was not satisfied (thus, it is a violation of the victim's rights).

Fraud can always be avoided, by a rigorous application of caveat emptor. I think you should carefully consider the consequences of a society where contracts were unenforcible, because saying "I never intended to provide the goods" becomes a defense against fraud.

I won't argue with you on that. But he wasn't convicted for fraud. He was convicted for rape (with fraud as a circumstance)

If the conviction was simple fraud that would be a different matter.

How do we get around this- most men who want easy sex with indiscriminate women (for free, not from a hooker) are likely to act more interested in a woman than they actually are. In many of these cases the men want the sex, the women want the attention and potential for a relationship.

Should every man who tells a woman they are more interested in a relationship than they in fact are in order to obtain sex go to jail?

How do we allow for the very real fact of spurned women falsely claiming rape?

How many women after giving sex away too cheaply will then claim they were tricked or deceived?

Is every easy woman who gets lied to to get them in the sack a rape victim now?

What of the reality that a woman who would go with a stranger to a nearby building for sex because he said "I am interested in a relationship" is half the time lying to herself-telling herself that the offer of a relationship (with someone she doesn't know)is the real reason she's going?

What if the man says he is interested in a LTR prior to sleeping with the woman but changes his mind as he has a right to do? What if his change of mind was due to a tangible, material fact- "she's awful in bed!" ?

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Is every easy woman who gets lied to to get them in the sack a rape victim now?

I don't have a full fleshed out answer for you at this time, however this thought occurred to me. The frequency of a given act should not determine the morality or legality of the act. Fraud is fraud no matter how many times it occurs. To apply this principle another way, if homicides became increasingly more frequent, would that mean they are any less violating of the rights of the victim?

If a horny man wants to risk fraud to get laid, he may have to be prepared for consequences he doesn't like, no matter how many times he got away with it before.

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I don't have a full fleshed out answer for you at this time, however this thought occurred to me. The frequency of a given act should not determine the morality or legality of the act. Fraud is fraud no matter how many times it occurs. To apply this principle another way, if homicides became increasingly more frequent, would that mean they are any less violating of the rights of the victim?

If a horny man wants to risk fraud to get laid, he may have to be prepared for consequences he doesn't like, no matter how many times he got away with it before.

This probably got confused by my comingling two points haphazardly within my post.

Point one:

The charge the man was convicted of was rape, not fraud.

I have a problem with it being called rape. I do not necessarily have a problem with it being called fraud.

Maybe he should be prepared for the consequences of what he did (fraud) but he should not have to face the consequences of what it wasn't (rape).

Point two:

Since I do believe that fraud could apply that is where the rest of my post came in.

If you are going to have a law, you must enforce it. If you are going to enforce it you have to clearly define it.

To add another scenario that would have to be addressed if promising women things you don't intend to give in return for sex is to be a crime:

1) many men promise sexual fidelity to a woman to get her to have sex with them. If he cheats, thereby making his promise a lie has she now be raped via fraud?

2) say a woman insists on marriage before sex. Your wedding vows are conventional (til death do us part). 9 months later you decide you don't love her. You file for divorce. Your wife had sex with you based on the promise of lifelong marriage. Raped by fraud?

I'm not trying to be absurd although it sure sounds like it. It seems to me these would have to be legitimately addressed if we were to say this ruling is "just".

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I have a problem with it being called rape. I do not necessarily have a problem with it being called fraud.
I agree, consensual sex with an adult is not rape.

His actions were clearly fraudulent, but I'm not sure if the details of this case involve a fraud that should be legally actionable.

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As the devil's advocate here: What if the woman were, in fact, very attracted to the man, even in love with him. She desired him sexually, but she would not act on that unless the possibility of a LTR were there, meaning he had to be jewish. Perhaps she believed, being told by him, he were jewish, when they first met.

If she hadn't believed him to be jewish, she wouldn't have spent any time with him, wouldn't have fallen for him, wouldn't have let herself become aroused and excited by him.

In every other way, he seems to be her dream-come-true. She decides to have sex...

She spent her time and emotional resources getting to know this person, based on his fraudulent representation. She lowered her religion-based defenses to him. He told the lie in order to get just this opportunity. He valued her company, and enjoyed it by lying to her. He knew she would be disappointed, even crushed. He chose to do that to her. He knew she wouldn't spend time with him, much less have sex, if she knew he wasn't jewish. He specifically maintained that lie in order to have her submit to a sexual encounter.

If the copulation were achieved without her informed consent, or through a trick, it was unwilling on her part. And unwilling sex is rape.

He by-passed her will in the matter of having a relationship with him, including a sexual one. He prevented her from fighting him off by lying to her, knowing fully that she would be unwilling unless he lied. It seems like rape to me.

A second point: The "'Til death do us part" statement in marriage ceremonies is not what you think. It is a declaration as to how long the parties intend the relationship to endure. Marriages are not for x years. The fact that their term is the life of the participants is what is being stated. If nothing else happens to alter their intentions, the marriage continues, no matter how many years go by. I think most people interpret it as you do, and I can't prove my contention, but under this interpretation, divorce doesn't reflect on the marriage vows so as to make the events of the marriage fraudulent.

A man who promises fidelity in order to persuade a woman to have sex with him, marry him, etc., must live up to that claim. I do think it is rape if he cheats. It is rape and more.

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I won't argue with you on that. But he wasn't convicted for fraud. He was convicted for rape (with fraud as a circumstance)

If the conviction was simple fraud that would be a different matter.

That not strange: criminal statutes especially where consent is an essential element (as in theft and rape) do include "by force or fraud".
How do we get around this- most men who want easy sex with indiscriminate women (for free, not from a hooker) are likely to act more interested in a woman than they actually are. In many of these cases the men want the sex, the women want the attention and potential for a relationship.

Should every man who tells a woman they are more interested in a relationship than they in fact are in order to obtain sex go to jail?

You could focus on the concept of fraud, making it harder to prove fraud by having a more stringent standard of materiality. I reject the implication that the woman was a trollop who got what she deserved, because we don't have enough evidence of her character to warrant that conclusion. Obviously, she's not hyper-orthodox. But you might demand overwhelming evidence that a fact is material.

Assume the following exchange between you and a mushroom salesman. "(He) Sorry I'm late, traffic was a bear and I got stuck behind an accident. Anyhow, I've got some real great 'shrooms for you and they're certified Organic and Local by the Organic and Local Commission; $20 for 20 lbs". "(You) Okay, good price, they look good here's a twenty". In reality, he wasn't stuck in traffic, he was boinking a bimbo, but he didn't want to say 'cuz you know his wife. So he make a false representation of a fact, but (I assume....) it was not material in your decision to buy the product -- his excuse for being late didn't make you more likely to buy his product.

In fraud cases, the bar on materiality is fairly low, I think, so one approach would be to require substantive proof that the fact in question "really mattered". So if the woman had blogged about how she believes that it's a sin for her to have sex with a non-Jewish man, that would be proof that the fact was material. Contrarily, if there was proof that she had previously been trolling for Arab men to have sex with, then you'd have proof that the fact was not material.

I'm not a fan of converting consensual sex into rape, but making an exception to the principle that fraud is a species of force is even less appealing.

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I'm not a fan of converting consensual sex into rape, but making an exception to the principle that fraud is a species of force is even less appealing.

Ok, lets focus on another legal aspect.

The burden of proof is on the accuser (ideally in justice, I do not know Israeli law) correct?

She is obviously loose enough with her "favors" that she met a strange man and immediately went to "a nearby building" to have sex with him. Then they parted ways.

At that point is it not he said/she said as to whether she "only had sex with him because he said X?"

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She is obviously loose enough with her "favors" that she met a strange man and immediately went to "a nearby building" to have sex with him. Then they parted ways.
I wonder if the Israeli courts would have sentenced the guy for rape if he was a Jew who had no intentions of taking things further than a casual relationship.
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I wonder if the Israeli courts would have sentenced the guy for rape if he was a Jew who had no intentions of taking things further than a casual relationship.

That was brought up towards the end of the article.

It was also mentioned that it is very doubtful that the same outcome would have happened if the reverse happened (Jewish man/Arab woman).

..aside from the fact if it was an Arab woman her own family may well have killed her before any trial anyway.

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To add another scenario that would have to be addressed if promising women things you don't intend to give in return for sex is to be a crime:

1) many men promise sexual fidelity to a woman to get her to have sex with them. If he cheats, thereby making his promise a lie has she now be raped via fraud?

2) say a woman insists on marriage before sex. Your wedding vows are conventional (til death do us part). 9 months later you decide you don't love her. You file for divorce. Your wife had sex with you based on the promise of lifelong marriage. Raped by fraud?

I'm not trying to be absurd although it sure sounds like it. It seems to me these would have to be legitimately addressed if we were to say this ruling is "just".

I think it is important to distinguish between promise of an unforeseeable future and knowingly misrepresenting facts that currently exist. The difference is this; A) have sex with me because I plan to be a doctor; B) have sex with me because I am a doctor. In one case, whether or not he will be a doctor in the future is yet to be determined and NO guarentee can be offered (or maybe even realistically expected) and in the other, the person knowingly misrepresented existing facts because he was a plumber, not a doctor. In the case of promises, fraud only exists when the perpetrator knowingly misrepresents his true (future) intentions and yes, this can be difficult to prove. In the case at hand however, the perpetrator knowingly misrepresented existing facts.

In the case of marriage, a contract is entered and I don't see a concern for "rape" because the existing contract governs the interactions between the two parties. There is a lawful outlet for a breach of the contract between the two parties.

More later.... Still thinking on some of this.

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At that point is it not he said/she said as to whether she "only had sex with him because he said X?"
No, there is no "he said/she said" issue here. She is competent to testify as to her mind; he is not competent to testify as to her mind. He may be able to point to a separate fact -- e.g. her having serviced a zillion non-Jewish men -- but he cannot possibly testify as to whether his lie made a difference in her decision.

So the issue is, if he has nothing at all to offer to rebut her testimony that his lie was a material factor in her choice, and if a reasonable man would conclude even in lieu of her testimony that the misrepresented fact was a material fact, then a reaonable court would conclude that the act satisfies the materiality test; which, I think, is the weakest point (empirically and philosophically). But, as I said, one might at least think about whether tightening up the standards for materiality would be desirable.

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The charge the man was convicted of was rape, not fraud.

Actually it was rape by deception, which apparently caries a lesser sentence than rape and indecent sexual assault.

Consent requires understanding. One cannot understand a situation if one is being deceived, therefore one cannot consent to such a situation. But how can a prosecutor have enough confidence to actually prosecute such a situation? It seems to me that there would have to be some sort of written contract. David, you may have addressed that issue, but I have to confess that I need you to dumb it down a bit for me.

Edit: Also, one of the reasons I brought up having a relationship with the man beforehand is this: To get through several weeks of dating his deception would have to be more elaborate and thus more provable.

Another concern I have (which is more of an aside really, I don't expect anyone to comment on this) is this: The ridiculous and arbitrary nature of religion. He could have actually had a religious experience when he saw this woman and then the magic wore off at the same time as the Viagra and alcohol. He could have then had a fit of guilt, washed his feet and prayed to Allah.

Edited by FeatherFall
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Consent requires understanding. One cannot understand a situation if one is being deceived, therefore one cannot consent to such a situation. But how can a prosecutor have enough confidence to actually prosecute such a situation?
First, it is not true that there is no understanding if one is being deceived. Let us take a simple contract; an essential element of a contract is a "meeting of the minds", meaning that party A understands that he is to provide an X and party B understands that he is to provide a Y. If the parties do not understand what X and Y are, the contract can be set aside without penalty. For example, suppose I offer you "10 barrels of haakjerringköd" if you give me "10,000 øre". You believe I have offered 10 barrels of whale meat, and I believe you have offered me 10,000 euros = about $13,000. The problem is that haakjerringköd means "shark meat" and øre is not a Euro, it's 8 cents. So there is no understanding and the court can set the contract aside.

Clearly, we cannot tolerate this for fraud. There is a "lack of understanding", but not a relevant one. The lack of understanding is on the part of the victim, who does not understand that they are being defrauded. A fraudulent offer is understandable, and it simply is false.

It seems to me that there would have to be some sort of written contract.

A prosecutor must look at the evidence available and decide whether the evidence matches the legal requirements. For example, if the prosecutor learns that the supposed fact is actually true, then he will not prosecute. If there is evidence that the fact is provably not material, he will not prosecute.

Written contracts are. IMO, vastly over-rated for simple affairs. For example, if you buy groceries with a check from a closed account, you have committed fraud and can be prosecuted. There does not need to be a written contract; yet every sale is the execution of an unwritten contract, an exchange of value. An alternative would be that in any exchange, there must be a precise description of what is being exchanged for what, and any deceptive deviation from what is literally asserted in the document is just the party's bad luck. So when you buy a dog, you have to be sure to specify that it's a living dog, etc. With a system like that, we might as well give up the concept of a contract.
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First, it is not true that there is no understanding if one is being deceived.

OK, so while one hasn't consented to the activity that happens after a deceptive contract was signed, it would be inaccurate to say that such a lack of consent is due to a lack of understanding. I can agree with that.

Writing a check is a clear indication that you intend to pay someone and that you've given them everything they need to collect. I agree that a written contract isn't necessary. But in cases where one sells goods to only a particular type of person, one usually requires proof that the buyer IS that type of person. In my line of work, we offer a military discount on firearms-related accessories. Wouldn't I have to show that somebody sent me a fake military ID (or something like it) to prosecute them for theft/fraud? Would the state ever get involved if I was operating on the honor system?

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Were you just linking to this for a little extra context?

A post under the heading "A whirl around the wacky world of false rape claims" on July 20th likens what this Arab man did to a black man convincing a woman she was white to get her to consent to sex. I trust I don't have to explain to you why these two situations are different.

Edited by FeatherFall
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Written contracts are. IMO, vastly over-rated for simple affairs. For example, if you buy groceries with a check from a closed account, you have committed fraud and can be prosecuted. There does not need to be a written contract; yet every sale is the execution of an unwritten contract, an exchange of value.

I have to disagree with you here. A check is, in essence, a very simple form of written contract. As is a signed credit card slip.

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Wouldn't I have to show that somebody sent me a fake military ID (or something like it) to prosecute them for theft/fraud? Would the state ever get involved if I was operating on the honor system?
Assuming that the question of them being military was the only material fact in question, yes, you would have to prove that you asked and they told. I bought an expensive program once that had an academic discount, and was required to send a photocopy of my faculty ID; if it had been a fake, I could have been prosecuted for fraud, assuming that it could be proven that it was fake. You, as the victim, don't have to do the forensic work required to prove in court that a false claim was made -- that is where the state gets involved. If your suspicion is base on something substantial (e.g. an American ID spelling the word "defense" with a "c"), the prosecution will take it from there. If your suspicion is in error (the ID is Canadian), the prosecutor will probably let you know about Canadian spelling.

Even if all you require is that a person say "Please give me the military discount, I am in the US Marines", without any ID, if you have evidence that the claim is false, that's prosecutable. (Now, how do you know that it's false? Hunches don't count). I do not know if you would have any luck with a person who simply says "Please give me the military discount", because that isn't a false representation -- it's a request, not a representation.

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I'm wondering how long it will take for your comment to hit the trash bin, Ragnar69. But I'll try to address what I think are the serious points:

1) If you make it clear to a woman that you will not have sex with a woman unless she fulfills certain criteria, I'd say she's guilty of some sort of crime if she deceives you about that criteria to get you into bed. I'd make the prosecution prove that you made her aware of this (something in writing would be fantastic). I personally don't think 18 months in jail is appropriate for such a crime, although I don't know how I'd begin to determine an objective sentence.

2) Again, there is no single charge of "Rape". There are different degrees that reflect the differing severity of the crimes and he is copping to a lesser charge of rape by deception.

3) It is not clear that this woman is a racist. The article states that her main concern is religion, not race. A religion is a consciously held conviction, unlike race. The writer of the article seems to hold the misconception that an Arab cannot be a Jew. Based on the fact that he's an Arab I'd assume he's Muslim, but this isn't true in the case of every Arab. The article should have mentioned his religion instead of his ethnicity.

Edit: Apparently the post was deleted in the time it took me to write a response. Good.

Edited by FeatherFall
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Were you just linking to this for a little extra context?

Yeah, since the trend in the last decade has been for prosecutor's to charge men accused of "rape" when in most cases by definition rape is not even occuring. For example in Washington state, they have 1st, 2nd and 3rd degree criteria for rape - with 3rd degree basically being if a man has sex with a woman and the following day, she regrets it or decides she really did not want to have sex and requires no physical proof of forced entry, just a woman claiming she was raped.

I had a close friend in college (when I was in Washington)that was accused of "date rape" by an ex girlfriend he had sex with that was jealous he was in a relationship with someone else and he was charged with 3rd degree rape based on her accusation, and his admission that they did in fact have sex. It was prosecuted in a backward county in Washington and the jury convicted him. He did 2.5 years, could not go back to college after he got out, and has had to work menial jobs for the last decade and a half and a times unable to find work.

Fast forward (that happened in 94) to summer 2005, when I was renting a room at my house to him with his life destroyed, and his ex girlfriend that caused it all found him on Facebook and sent him a message that led to phone calls, texts and eventually them being back together again for over a year. I was speechless when she first came to my house but let the situation take it's course and watched it unfold. She apologized to him and said she was "confused" and that she only initially told a close girlfriend that he raped her but her girlfriend went to a university counselor and told her, who told the campus, who called the police - and at one point her father found out through her. She was in tears at my house telling him that she was "pressured" by her father, "manipulated" by the prosecutor, etc, etc And he took her back and they spent over a year together. He went so far as to hire an attorney and she came clean about what she said happened in 94. The original prosector that handled the case was contacted and he wrote a two page letter back to my friend's attorney that said alot but concluded with:

"It is often common for women involved in dating relationships to change or revise their version of past events, although they were actually harmed. It was my job as a prosecutor to address the liklehood that it occurred. . . ." and it went on and on. That particular prosecutor eventually grew a conscience and stopped handling cases and going to trial and transferred to the information systems and recordkeeping division of that county's prosecutors office.

To conclude, and after having read The Fountainhead years ago, and in terms of the "rape" part of the story with Domonique - given the proper circumstances and situation, and a different woman involved in a real world scenario - Howard Roark would have been arrested and charged with rape, convicted and lived the rest of his life as a registered sex offender, and no kind of epic speech to the jury like he did in the book would have saved him.

Skydive Outlaw

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