Lying and Consensual Sex

I was listening to an NPR broadcast at lunchtime today and was struck by a talkback portion of the show dealing with a case in Israel where a man was sentenced to an 18 month jail term for rape in Israel because he had lied to a Jewish woman to convince her to have sex with him - he told her he was Jewish when, in fact, he was an Arab.  The judge in the case referred to his conduct as "rape by deception".  BBC story here.

What was particularly interesting to me was listening to a panel of non-lawyers talking about how they perceived the definition of rape.  Most of the talkback part of the show focused on things like the perceived necessity of physical violence to support a rape conviction and/or various social definitions of fraud.  During the time I was listening to the show, no one - not even the host - talked about the concept of "consent" to sex, or discussed whether the sexual act could be meaningfully "consensual" in situations where one party has lied to the other to convince them to engage in sexual activity.  Am I missing something or shouldn't this have been an important part of the discussion?

Incidentally, one person who called into the show made an analogy between lying to someone to get them to have sex and slipping drugs into the person's drink in order to induce them to have sex.  Interesting analogy, but I'm not sure that it works on close examination.  The drug situation physically removes a person's ability to make clear decisions, whereas the lying situation leaves the "victim's" natural ability to analyze the situation intact, but presents the victim with false information.  Is this significantly different or not?

Comments

[anon]

Do you think the court realized what it was doing? What if this guy considered himself Jewish, was raised in a Jewish family, etc., but his mother was not Jewish. Assume that the woman was just as upset as in the actual case when she found his mother was not Jewish because she believes that's what makes you Jewish under the terms of the religion. Would the court have reached the same conclusion? Would the court be compelled to do so now? Would it start deciding religious disputes?

[Jacqueline Lipton]

You make good points, anon. I should also note that another interesting feature of the radio talkback on this was how little airtime was devoted to the question about religion/race. The show focused more on whether we should generally criminalize lying to get someone into bed. There were a few comments about the significance of the religious and racial issues in this particular case, but these do seem to me to be extremely significant issues that may distinguish this case from cases of, say, someone lying about how much money they earn, where they live, what school they went to, or what car they drive.

[Alice Ristroph]

On consent, it's worth noting that many feminist reform efforts have sought to remove references to consent, or the victim's will, from definitions of rape. One argument is that such references focus attention on the victim's state of mind and "put the victim on trial," when the attention should be on the defendant's state of mind and conduct. Whatever one thinks of those efforts, it seems to me that fraud is the right concept to consider here. The critical question is how he got her to agree to sex.

And on that, I'd be interested to hear why you think lying about race/religion is different from lying about one's wealth, age, emotional commitments, or any of the other characteristics that are frequently misrepresented among prospective intimate partners. Interestingly, in this case, the woman alleges that the defendant told her at least three lies: that he was Jewish, that he was single, and that he was interested in a serious relationship with her. If the first lie is the real basis of criminal liability, as your post suggests and as I suspect is accurate, what separates that lie from the others?

[Matt Lister]

The "serious relationship" claim is interesting given that, from the bit I've read, they'd met only a little bit before (as in hours at most, not days) and went and had sex in an abandoned building. That doesn't seem like the likely basis for a long-term relationship to me. But, like Alice, I wonder how this could plausibly be differentiated from cases of someone saying that he (or she) really likes the other person, has a good job, etc. To my mind I'd ask if we'd want to make it a crime to, say, get someone to go to a movie on those grounds. If not, (and I hope not) I might not want to make sex a crime either, though I understand that's a minority view.

[Jacqueline Lipton]

I think I would actually class the claim about being single together with the claim about race/religion in this case. And I might differentiate those from claims about financial status, educational background etc. The reason being that I suppose (possibly incorrectly) that a religious Jewish woman in Israel seeking a long term partner probably places significant cultural weight on religion and availability of the partner as a potential husband. Thus if he lies about these issues that are fundamental to the core of her cultural beliefs, that may be more significant than lies that may not create so much potential shame for her within the culture/community. That said, it is also odd that they had apparently just met and went off to have sex in an office building - as Matt has pointed out.

[TJ]

Jacqui,

To say that lies about race/religion are more "significant" to the woman than lies about other things is really tricky here. Some women care about the race or religion of their partners; some care about wealth; and some care about education and social class. You mention this is a "religious Jewish" woman, but what distinguishes that from the preferences of an "avaricious" woman or an "elitist snobbish" woman? And I hardly doubt that wealth or education or social class is really important to some people in the choice of partners.

One possible distinction, of course, is that you believe racial and religious discrimination to be more objectively legitimate and socially acceptable than discrimination based on wealth or education or social class. But that is not a self-evident proposition.

[Alice Ristroph]

Jacqui, your proposed eggshell heart rule doesn't seem enforceable or attractive. And I don't think you've distinguished between lies about race/religion and other lies. As TJ points out, wealth, class, and education could also be "fundamental to the core of [one's] cultural beliefs." And there are countless other imaginable issues that may be similarly fundamental to a given individual. If it's sufficiently important to a man to have sex only with a virgin, is a woman who lies to him about her sexual past a rapist? If it's sufficiently important to a woman to sleep only with a man who loves her, is the cad who falsely says "I love you" a rapist? If it's sufficiently important to a man not to have children, is the woman who falsely claims to be on the pill a rapist?

Your reference to "shame within the culture/community" only makes it worse. It lends credence to the defendant's claim in this case that the decision was racist -- an expression of cultural outrage that a Jewish woman would be tricked into sleeping with a dirty Arab. To be fair to the Israeli courts, they have apparently applied the same law in cases not involving claims of racial or religious deception. One defendant lied to women about being a neurosurgeon, and was also convicted. In my view, that decision illustrates a problem with this law independent of the potential for racial or religious discrimination: sex and lies are so often intertwined that a law like this invites arbitrary application.

[Anon]

Wait, I'm confused. Can't one be an Arab and Jewish?

[Jacqueline Lipton]

I guess all the comments that have been made underscore Alice's earlier point that it's very hard when inquiries focus too much on the victim's state of mind - for various reasons.