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Friday, July 23, 2010
Again, pretty far from my topic, but I was wondering what people think about this:
Rape Conviction and Prison for Lying about Ethnicity in Connection with Sex. The article is scant on the full facts, but what do you think?Posted by Jen Kreder on July 23, 2010 at 01:01 PM | Permalink
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Comments
Insightful as always, thanks Mike.
Posted by: Jen Kreder | Jul 23, 2010 8:04:52 PM
Interesting. At common law, fraud in the inducement, as occurred here, could not be grounds for rape, while fraud in the factum (e.g., doctor tells woman he is placing a medical instrument inside her during a pelvic exam but it is actually his penis) could. As long as the woman knew she was having sex, it was not rape, even if she was duped. The sole exception was where a woman was defrauded into thinking she was having sex with her husband. The theory, apparently, was that sex outside of marriage itself was a crime (adultery or fornication, depending on whether the parties were married to others), so that the woman, being a willing participant in one crime, could not claim a different crime occurred -- sort of an "unclean hands" doctrine. See Anne M. Coughlin, Sex and Guilt, 84 Va. L. Rev. 1 (1998). Thankfully, we have mostly rejected that premise. However, there is still an unsettling "slippery slope" aspect of recognizing rape based on a fraud-in-the-inducement theory. Plus there is the very unsettling racial element here: imagine a white woman in this country claiming a man with one-quarter African heritage raped her on the ground that he claimed to be 100% white!
Posted by: Mike Mannheimer | Jul 23, 2010 4:38:08 PM