Legal Commentary

An Interesting ?Rape by Fraud? Case from Israel

By Eugene Volokh

The Guardian (UK) reports:

A Palestinian man has been convicted of rape after having consensual sex with a woman who had believed him to be a fellow Jew.

Sabbar Kashur, 30, was sentenced to 18 months in prison on Monday after the court ruled that he was guilty of rape by deception. According to the complaint filed by the woman with the Jerusalem district court, the two met in downtown Jerusalem in September 2008 where Kashur, an Arab from East Jerusalem, introduced himself as a Jewish bachelor seeking a serious relationship. The two then had consensual sex in a nearby building before Kashur left....

Handing down the verdict, Tzvi Segal, one of three judges on the case, acknowledged that sex had been consensual but said that although not ?a classical rape by force,? the woman would not have consented if she had not believed Kashur was Jewish.

The sex therefore was obtained under false pretences, the judges said. ?If she hadn?t thought the accused was a Jewish bachelor interested in a serious romantic relationship, she would not have cooperated,? they added....

Segal said: ?The court is obliged to protect the public interest from sophisticated, smooth-tongued criminals who can deceive innocent victims at an unbearable price ? the sanctity of their bodies and souls. When the very basis of trust between human beings drops, especially when the matters at hand are so intimate, sensitive and fateful, the court is required to stand firmly at the side of the victims ? actual and potential ? to protect their wellbeing. Otherwise, they will be used, manipulated and misled, while paying only a tolerable and symbolic price.?

Such ?fraud in the inducement? would not suffice for a rape conviction under the law of most American states, though it?s an interesting question why it?s a crime to get money by fraud but not to get sex by fraud. (There are good answers to that question, I think, but they?re not so obviously right as to keep the question from being interesting.)

For some thoughts from last year on a proposal in Massachusetts that might have allowed liability in such a situation, see here. Also, it appears that a few American rape statutes might already criminalize sex procured through false statements. 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. And some states generally provide that ?assent does not constitute consent if ... [i]t is induced by force, duress, or deception? (to quote Colo. Rev. Stats. Ann. § 18?1-505), which would in principle apply to rape cases as well.

If anyone can point me to the written opinion in the case, I?d be much obliged, both so I can blog about it and so I can use it in my Criminal Law class this Fall (I have a unit on fraud in the section on the law of rape). Thanks to Mike Sheridan for the pointer.

Full post as published by The Volokh Conspiracy on July 21, 2010 (boomark / email).