Rape and False Pretenses
The case of the Israeli Palestinian who was convicted of rape after falsely telling a Jewish woman that he too was Jewish has raised a lot of interesting questions. Some see it as further proof that Israel is a horribly racist society. Their logic goes something like this. 1) This bad thing that happened to a Palestinian man shows that Israel is racist. 2) Okay, fine, maybe he was a bit rapey. 3) But he wouldn’t have been prosecuted if he wasn’t a Palestinian man. We know this because of how racist Israel is. 4) For proof that Israel is racist, see step one. It’s circular. I’m not saying that Israel shouldn’t be criticized. It should. But let’s stick to the logically sound criticisms.
But this conviction does raise the issue of whether consent is really consent if it’s obtained through fraud. And what constitutes fraud?
The traditional example of rape under false pretenses would be the guy who falsely claims to be the long-lost husband returned from the war. We don’t see that one much. So let’s try a different problem.
Suppose somebody says, “I’ll give you $10,000” to have sex with me.” This is, of course, soliciting prostitution. It’s probably illegal where you live. But it’s not rape illegal.
The response: “Deal.” Again, prostitution. Not legal. But the ensuing sex is consensual.
Then, “Oh. I lied about the money.” Is this rape? Without taking a stance one way or another on whether we thing prostitution is a good thing, we can agree that if consent was only given in exchange for a promise of money and that promise was a lie, the consent is also insufficient. Rape. It may not be aggrevated rape—but it is rape.
We eventually get into a grey area. If two people who are “looking fun” and both agree that their favorite band is Metallica but one of them is lying, is whatever sex ensues rape? Probably not—unless that deception was somehow a material part of the other’s consent.
But that’s not what happened in the Israel case. A man claimed to be a Jewish man looking for a serious relationship. This meshed well with the woman who was looking for a Jewish man looking for a serious relationship. And, unless we want to spend time speculating about the virtue or judgment of the woman in question, we need to take her at her word. Shared experience and beliefs are an important element of relationships.
We can use the same standards for rape through fraud as we use for normal rape. The statements must be false and known to be false by the speaker. They must be material and intented to be relied upon by the victim. And the victim must be unaware that the statements are false and reasonably rely upon the false statements.
This is the spot where people normally object. The objection is usually something like, “Hold on. Are you saying I can’t lie to women to get them to sleep with me? Not that I do that because I’m a nice guy. It’s just that some, uh, other guys do it. And I’m all in favor of not defrauding people into sex—but I’m even more into having sex. And wouldn’t this chill my ability to tell lies that aren’t all that fraudulent to people I want to sleep with?”
Yes. There’s a chance it would. And if being asked to tell the truth to people you’re sleepign with is mucking up your game, I’ve got an extra ticket to go see the world’s smallest violin played by the world’s weepiest puppy. Perhaps that will help you get over it.