Lying to get sex: Is it rape?

A Jerusalem court convicts a man of sexual assault for posing as Jewish in order to get laid

Published July 21, 2010 3:16PM (EDT)

In Jerusalem, lying your way into a woman's bed can get you in big trouble. A court has convicted an Arab man of "rape by deception" and sentenced him to 18 months in prison after he posed as a Jew in order to have sex with a Jewish woman.

The details of the case are vague and bizarre: After a chance meeting, in which 30-year-old Sabbar Kashur introduced himself as "Daniel," apparently as a way of  tricking the woman into thinking he was Jewish, the pair stole away to a nearby office building and had sex. He left before she could even get dressed (which, you know, violates common decency but not any actual laws), but after the fact she somehow discovered that he wasn't Jewish. (Cue the politically incorrect jokes.) In the final ruling, Jerusalem District Court Judge Tzvi Segal wrote: "If she hadn't thought the accused was a Jewish bachelor interested in a serious romantic relationship, she would not have cooperated." 

But how many of us can make similar claims? If I hadn't thought [blank], I would't have slept with him. I thought he was going to call, I thought he wanted a serious relationship, I thought he was really going to leave his wife, etc. Have you seen the section of pickup artist manuals at your local bookstore? There's an industry dedicated to manipulating your way into sex. As a New York court ruled in 1975, though, "It is not criminal conduct for a male ... to assure any trusting female that, as in the ancient fairy tale, the ugly frog is really the handsome prince." Men are hardly the only ones to lie their way into bed, though: There is plenty of deception in makeup, padded bras, plastic surgery and Spanx. That's not to mention the impressive array of emotional game-playing that some folks use as foreplay. 

None of these things register as rape, though; for better or worse, they are an expected part of courtship. While this particular case carries with it troubling racial tensions and taboos, it does raise an interesting question: How do you draw the line between sexual seduction and fraud?

U.S. law has expanded to allow for rape by fraud, but interpretations are fairly strict. As a 2007 report in the Northwestern University Law Review notes, "Many jurisdictions prohibit specific categories of [sex by] fraud -- identity fraud, spousal impersonation, and fraudulent medical treatment." Under the category of spousal impersonation, for instance, I once wrote about a Massachusetts man who impersonated his brother in order to have sex with his wife. (The case was dismissed, however, because the state recognizes only rape by force.) Fraudulent medical treatment includes doctors who convince patients that sex -- with the medical professional standing before them, of course -- is a cure to whatever ails them. Clearly, Jerusalem's jurists have gone with a much looser definition of rape by fraud.

Elkana Laist of the public defender's office told Hareetz that the ruling sets a dangerous precedent and opens "the door to a rape conviction every time a person lies regarding details of his identity." The only question is how on earth the court system is going to process all those cases.

By Tracy Clark-Flory

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