Sherry F. Colb

The Jerusalem "Rape by Deception" Case: Can a Lie Transform Consensual Sex Into Rape?

Wednesday, August 4, 2010

In September of 2008, a woman met a man in Jerusalem. The two began talking, and soon afterward, there was sexual intercourse. A few weeks ago, after pleading guilty, the man was sentenced to 18 months in prison for raping the woman. This was not, however, a typical case of rape. The woman acknowledges that she consented to have sex with the man, that he did not force her to do anything, and that he did not threaten her. The woman, moreover, was not a minor, was not mentally incompetent, and was not impaired by alcohol or drugs at the time she made her decision.

What, then, led to the conduct's being labeled "rape"? Prior to having sex, the man, Sabbar Kashur (alternately spelled Saber Kashour and Sabar Kashour in different media outlets), told the woman that he was a single Jewish man, interested in a serious relationship. In reality, however, he was (and is) a married, Palestinian Arab man with two children.

This column will examine the legitimacy of classifying what happened in this case as a "rape" of any sort.

U.S. and Israeli Law on "Rape by Deception": A Comparison

Just to provide context, in some states here in the U.S., as in Israel, it is technically a rape crime to obtain consent to intercourse by means of fraud or deception.

In the U.S., a number of prosecutions under these laws have involved medical professionals who fraudulently represented that sexual relations were part of a medically- beneficial treatment that the complainant would be undergoing.

In Israel, the crime of rape by deception -- which is not frequently prosecuted -- came to the public's attention in a case in which the convicted defendant had pretended to be a Housing Ministry official and promised a woman an apartment and benefits.

The various rape-by-deception laws all have in common the blurring of the line between "without consent" and "with consent obtained by lies."

Force versus Fraud

One feature that ordinarily distinguishes "rape" from "consent by false pretenses" is the element of violence, of violating another's bodily integrity against his or her will. The woman in the Jerusalem case, however -- according to her own statement -- chose to have sex with Sabbar Kashur. (Though the District Attorney originally charged Kashur with forcible rape, the woman's statements led to a revision of the indictment. By her own account, she willingly consented.) Furthermore, she did not decide, after having consented, that she wanted the sex to stop while in progress, with him ignoring her subsequent protests, a scenario in which -- as I have explained, here and here -- the law of rape ought legitimately to apply. She also did not say no, only to have her refusal disregarded.

This is not, in other words, a case that pits misogynists (people who believe that only strangers to a woman can truly be guilty of her rape, or that a woman's promiscuity should somehow waive her right against rape) against feminists (who believe that a person's decision to refuse sex ought to be protected by law, no matter what she wore, how often she has consented in the past, and what her prior relationship with the perpetrator was). Kashur's case is, instead, one that conflates fraud with violence.

A Hypothetical Example, For Contrast

It is difficult, of course, to ignore the content of the fraud in this case, and that content makes the rape conviction much more disturbing than it might otherwise be. To many, the prosecution's account of what happened probably sounds like the complaint of a white woman accusing a consensual partner of rape for failing to disclose that his grandfather was African-American. It sounds, in other words, like a racist objection to having been tricked into having sex with someone with the "wrong" genetic lineage. If so, then it feeds the fire to suggest that not only did Kashur wrong the woman, but he can actually be said to have "raped" her. It feels like a racist lie, even though the facts are not in dispute (and there is thus no party claiming that the other is "lying").

It is important, however, to ask whether it is the racist overtones or something else that makes the word "rape" seem misplaced here. To examine this question, consider the following, alternative, scenario: A man approaches a woman in Jerusalem, and they begin talking. They find each other attractive and look for a private place to go. Then, when they are alone, the man mentions casually that he is not Jewish (and that he is married). Upon hearing this, the woman says she no longer wants to have sex with him. If he then disregards her wishes and forces himself on her, he unquestionably has raped her. The fact that we might think she has an offensive or objectionable reason for refusing to have sex is irrelevant. She has the right to refuse, and if he overrides that refusal, then he is a rapist, her racism (or reluctance to sleep with a married man) notwithstanding.

If the use of the term "rape" in the Jerusalem case seems wrong, then, it is not because of the complainant's bad reason for wishing she had not consented. It is the simple fact that she did consent, however misled she was about her partner's religion and marital status at the time.

Fraud Can Be Significant

None of this is meant, of course, to suggest that fraud or deception is innocuous. A lie can be fatal. To take a straightforward example, imagine that your friend gives you a cup of coffee to drink. Unbeknownst to you, the coffee contains cyanide. You comment on the almond scent, and your friend assures you that it's a special and very delicious coffee. So you drink it and then die of cyanide poisoning.

There was no force in this scenario. If you had wanted to say no to the coffee, you could have. In fact, you brought the coffee to your own lips and drank it. Your friend, in this scenario, did not even touch you. All was consensual.

Yet the friend is nonetheless and unambiguously responsible for killing you. When the outcome is death and someone tricks you into thinking that it will not be, then that trick makes him or her guilty of homicide. Even if the jurisdiction in which you lived permitted assisted suicide, moreover, the events described would not qualify as such, because you did not choose to drink cyanide. The material event is the decision whether or not to ingest a poisonous substance. By concealing from you the fact that the coffee was such a substance, your friend robbed you of the relevant freedom -- the freedom to decide whether to take your own life -- just as surely as if he or she had poured the poison down your throat and thereby committed the homicide by force.

Take another example: Someone infected with a deadly S.T.D. (sexually-transmitted disease) has consensual sex with a healthy person, thereby infecting the latter. It turns out that the first person lied to the second to obtain consent, claiming that he was perfectly healthy and had tested negative for all known S.T.D.s. Here, the liar has done something terrible to the consenting victim, despite the absence of physical force, threats, or any decision to override a refusal to consent. There is a serious harm, in other words, even though there is no rape.

As in the poisonous coffee example, the person who knowingly exposes another to a deadly infection has inflicted a serious harm, and that harm is not eliminated by the fact of misinformed consent. In both cases, the deceptions are deadly, and the fact that they are not compounded by force does nothing to alter their homicidal character. It would not serve any purpose, and would in fact confuse the nature of the harm at stake, to call either of the events at issue by the name "rape."

To say that fraud in procuring consent to sex is not rape, then, is to insist on clarity -- rather than to diminish the significance of fraud. How significant the fraud is will depend on how harmful the outcome that was deceptively concealed from the victim turns out to be.

The Lies People Tell

Whether criminal or not, there are some lies people tell to procure sex that most would agree are reprehensible, to differing degrees. Lying about one's infectious disease status is one example. The sorts of lies we routinely accept and even expect, however, are those that enhance the liar's attractiveness to the target of the lie. People might misrepresent their feelings, for example, and pretend a much more (or perhaps a much less) serious attachment than they truly feel. They might lie about their CV and say that they have a more lucrative/interesting/socially-beneficial job than they really have. People prevaricate about their availability for a relationship and pretend that they are single when they are actually married (as Kashur did). They also fake membership in favored communities (as Kashur did). And they deliberately misstate their age.

Some deceptions used to attract a lover are not technically "lies." A person might use makeup, for example, to conceal a facial flaw, or use perfume to mask body odor, breath mints to hide halitosis or shoe inserts to exaggerate apparent height. Another might wear clothes that make him look slimmer than he is. Yet another might undergo cosmetic surgery to create a more attractive appearance. (Some examples are breast enhancement, penis enlargement, Botox, and liposuction.) To the extent that physical attractiveness is an indicator of likely genetic fitness of offspring (one way of reading sexual attraction), a person who was physically hideous, but who had surgery that made him beautiful is, in essence, telling a lie about what he has to offer a partner.

Yet we do not generally require people to be honest about their feelings, their jobs, or their physical appearances before they engage in consensual sexual relations. Making yourself seem more attractive than you are is understood to be part of dating. To imprison a person for having consensual sex without telling a partner about his or her prior liposuction would seem like a serious abuse of the criminal law. To deploy the word "rape" to describe the crime would only add insult to injury.

There is enough controversy surrounding the legal status of intercourse without consent, when it occurs between acquaintances or people on a date. To use "rape" to mean something that is not at all like a rape further delegitimizes efforts to make people understand the violence that nonconsensual sex truly entails.

What Might Be Meant By "Rape By Deception"

The notion of rape by deception or fraud could refer to circumstances in which a person consents to something other than sex. For example, a doctor who has sex with a patient while examining her in an office could be described as raping her, because she consented only to be examined, not to sexual intercourse. Or, consider a more far-fetched example: A (future) defendant named "Defendant" leads a man, Victim, to a restroom in a private club and tells Victim that this restroom has special rules and that Victim must knock on the left side of his stall before exiting. It turns out, however, that -- unbeknownst to Victim -- he is in a restroom frequented by sadomasochists, and knocking on the left side of his stall is the way in which a person in a stall of that restroom communicates that he wants the person in the next stall to climb under the barrier and forcibly penetrate him. In that situation, Defendant has committed what I would view as a rape by deception, by inducing Victim to "consent" to penetration without meaning to do so. Consent necessarily contemplates that the "consenter" is aware that he is consenting to intercourse; if he or she believes the consent is for something else, then there is no consent.

There is a difference, then, between a lack of informed consent and a lack of consent. Lacking sufficient information to make an informed decision (or receiving affirmatively false information), one can say that there has been a fraud. Without consent (or with consent that only extends to something other than sex), there has been a sexual battery, also known as a rape. Some facts (that what will happen is sex) are essential to consent, while others (that the person to whom one is consenting has particular personal qualities) are not, though they might represent material information -- information that is of significance to the decision-making of the consenting party and thus pertinent to a fraud charge.

Some of the cases that have arisen in the U.S. with respect to rape by deception are legitimately difficult. These are cases in which a health-care professional tells a patient that intercourse will be medically beneficial and thereby obtains consent. In such cases, the patient knows that there will be intercourse, so there is actually consent to that intercourse. On the other hand, medical professionals are in a position to induce people to undergo extremely painful, invasive, and even life-threatening procedures that would ordinarily qualify as aggravated assaults, because people are desperate to regain their health. Under these conditions, consent to intercourse looks very different from the kind of consent that is given to a desired partner who happens not to be single (or Jewish). There is arguably an implied threat -- the threat of worsening disease -- that coerces the act of intercourse.

One could, similarly, reconceptualize the Housing-Ministry Israeli case described earlier, to make it more difficult. Imagine that instead of telling a woman that he could get her housing, the ersatz Housing-Ministry official had told her that he could and would get her kicked out of her current home if she refused to have sex with him. Though he has not made a threat of imminent force, he has made a threat by which he is inducing a woman who does not want to have sex with him to consent to do so anyway, in order to avoid homelessness.

Though the offense he has committed is still distinct from rape, such a threat is at least related enough to a threat of force to be a close cousin of rape. Note, however, that what makes it rape-like is not that the man is lying about his identity -- an actual public official who sincerely said that he would have the woman evicted from her home if she did not have sex with him would be engaged in the very same sort of coercive misconduct as the liar (and could arguably be considered even worse, for abusing a public trust in that way). Saying "Your money or your life," in other words, is violent because of the threat of death, and we do not give special credit, under the law, if the robber was being honest and would really have killed the target if no money was forthcoming.

Unwanted Sex, Nonconsent, and Fraud

Having identified the above cases as difficult ones, I would still opt for calling the conduct that occurred in each of them something other than rape. Because of the coercion that is involved, each of these cases seems to qualify as a sort of sexual harassment, through which a victim who does not wish to have sex with the perpetrator still does so, in order to avoid an even-less-desirable outcome. The implicit threat (of illness, homelessness, etc.) is what gives these cases even a family resemblance to rape.

What makes our Jerusalem case (and any American cases that are like it) different is that the victim, by hypothesis, wanted to have sex with the "perpetrator" and expressed that desire by consenting. There is no claim that she believed she would become homeless or sick, or suffer otherwise-frightening consequences, if she did not agree to have sex with him. What his lies induced in her was the desire to have sex with him (rather than her acquiescence in a sexual act that she believed was undesirable, but better than a horrifying alternative). When people decide to have sex out of mutual desire and at no time during the act of sex do they change their feelings or their expressed wishes, then it is deceptive and fraudulent to call that sex "rape."

Sherry F. Colb, a FindLaw columnist, is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School. Her book, When Sex Counts: Making Babies and Making Law, is available on Amazon.

Ads by FindLaw