Does sex through fraud constitute rape?

Not according to Massachusetts' Supreme Judicial Court.

Published May 11, 2007 7:37PM (EDT)

In Massachusetts, rape is defined as sex by force. Period, end of story. Unfortunately, the reality of rape isn't always so black and white. Take the case of a Hampden County woman who says she was raped by her boyfriend's brother -- not by force, though.

She was living with her boyfriend, Duane Suliveres, in the basement of his father's home, reports the Boston Globe. Duane's brother, Alvin, also lived in the house. One morning, when Duane was working a graveyard shift, the woman says she awoke at 3 a.m. to a man walking into her room. It was dark, she couldn't make out who the person was, but naturally assumed it was her boyfriend. She then asked, "Duane, why are you home so early?" No response. The man then climbed into bed with her, took off her clothes and had sex with her. Afterward, the man got up to leave and, once he opened the door, she realized it was Alvin, not Duane.

So, was this rape? The original trial ended in a hung jury in 2006 and then went to the state Supreme Judicial Court, which ruled Thursday that the rape charges should have been dismissed because Massachusetts law clearly defines rape as an act of force. The court may have closely followed the letter of the law, but rape victim advocates are outraged. "The message that the court sends today is ... that a man's ability to obtain sex through fraud with regard to who he is is more important than a woman's fundamental right to control her own body," said Wendy J. Murphy, a professor at the New England School of Law. "It is impossible -- as a matter of fact and law -- to consent to sex with the wrong person."

Alvin maintains that he didn't pose as his brother and the sex was completely consensual, but, regardless, the law doesn't allow for a conviction in this case. Massachusetts' legal definition of rape does seem dangerously out of date; for sex obtained through fraud to count as rape, state lawmakers have to update the law. A handful of sensible states have already broadened their legal definition of rape -- it's time for Massachusetts (and we haven't forgotten about you, Maryland) to get with the program.

By Tracy Clark-Flory

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