The Kickham Comment - Boston Criminal Attorney Blog
Here’s an interesting question someone put to me recently. It has to do with rape and sexual assault:
“Let’s assume that I decided to pretend I was gay to get in with the more trendy women who hate me for being a “heterosexual pig.” Assume I got such a woman back to my place (on the pretext that I was gay,) and she starts coming on to me, saying I should try it (sex with a woman,) as I might learn to like it. Now assume I said something like “OK; I suppose if we really must, I’ll try it.” Since I got what I really wanted all along, but used a cunning if deceitful technique to achieve my aims, would that be considered rape?”
Well, well – Creativity never ceases, no? This man’s question is premised upon a legal concept known as “Fraud In the Inducement.” He’s borrowed this legal concept from contract law, and the theory has been used in legal practice areas as seemingly disparate as business litigation and family law/domestic relations law. This legal theory – essentially a defense – holds that if someone is enticed or induced to enter into a contract based upon fraudulent representations, then that contract is either void or voidable (“void” meaning “Void Ab Initio”, Latin for “Void from the beginning”; and “Voidable” meaning, cancellable at the election of the party claiming fraud.) In business litigation, for example, if one party to a contract has been induced to enter the contract due to material misrepresentations, the party seeking relief may be entitled to relief from the obligations imposed upon him in the putative contract.
In a family law or domestic relations situation, if one party to a marriage has been enticed to enter into the contract based upon fraudulent representations, the marriage may be deemed void. A classic law school example of this, is the “spouse” who, prior to entering into the marriage, represented that he or she wanted to have children, when in fact the person never intended to have children. After the marriage is consummated, he or she declares that children will never be produced from the marriage. Fraud of that nature can lead to a judicial declaration that the marriage was “Void Ab Initio.” As similar example of “Fraud In the Inducement” of a marriage, would involve a “spouse” who represented to his/her partner that he or she was the product of or a member of a prominent family (say a Rockefeller or similar,) when in fact they never were.
The gentleman who asked the above question, however, has confused this legal concept with another criminal law theory that is used in cases of consensual sexual relations that result in the transmission of sexually transmitted diseases, or STD’s. This is the type of situation that occurs when one person, who is aware that he or she carries an STD, engages in consensual sex with a partner without informing that person of the fact that he/she has an STD. If the unwitting partner contracts that disease, the deceiving, or “silent” partner (as it were,) can be both charged criminally with Assault and Battery, as well as sued civilly for damages that result from that STD infection.
The legal basis for both criminal penalties and civil liability in this instance, is premised upon the absence of “valid” consent. Even though, in the example of an innocent person contracting an STD, both parties seemed to “consent” to the sex, “valid” consent would be lacking, as the “consent” that was granted by the innocent party, was obtained through fraud. The “fraud” in this context is the failure to disclose that the non-innocent party carried a communicable disease (an STD.) The legal theory providing for both criminal penalties and civil liability in this example, is based upon battery, which is the unconsented-to physical contact with another person. While inoffensive contact such as bumping into someone in a public setting is deemed “implied consent” and thus not actionable on a criminal or civil basis, sexual contact does not fall in this category.
Therefore, the answer to the question posed at the top of this post, “Since I got what I really wanted all along, but used a cunning if deceitful technique to achieve my aims, would that be considered rape?” is, as of current case law in Massachusetts, “No.” However, I wouldn’t suggest that eligible singles – men or women – resort to this tactic. In the beginning, end and middle of everyday actions, there is something called self-respect, and behavior like this doesn’t reflect it. Better to become a more honest person, hit the gym, or both.