"Intercourse where consent is achieved by fraud does not constitute rape." So wrote Justice Judith Cowin in a decision on Thursday, 5/10/07.
The Massachusetts Supreme Judicial Court has ruled that tricking a person into having sex is not rape. This reaffirmed an opinion it has held since 1959 and has thus put the onus on the Legislature to rewrite history.
The SJC ordered a lower court to exonerate 44-year old man who had been indicted for rape in 2005. The man was accused of persuading his brother's girlfriend of 12 years to have intercourse with him by impersonating his sibling in the middle of the night. Both brothers were bald and the victim was awoken from a sound sleep in the dark.
The ensuing trial ended with a hung jury last year which prompted the Hampden County District Attorney to beseech the SJC to overrule Commonwealth V. Goldenberg, a nearly half-century-old decision.
In that case, the court found that a physiotherapist who told a 19-year-old woman who came to him for an abortion that she would have to have sex with him to help the procedure succeed wasn't guilty of rape, either.
The court cited the state's legal requirement for rape of "force" or "threat" where the victim is otherwise not not completely helpless or unconscious.
In this decision, the court has basically said that without force, you cannot bring a rape charge under the current law. D.A. William Bennet said, "There was the hope that - given the facts of this case - they would rethink that decision."
Fewer than a half-dozen states - including California and Tennessee among them - recognize fraud as a substitute for force in proving rape.
My thoughts:Will the the issue of the use of the so-called "date drugs" be revisited? I can foresee some hot-shot greedy lawyer claiming that the administering of those drugs would be just a form of trickery where the victims were not helpless or passed out.
Every devious man out there who has ever concocted or thought about using ruses to obtain sex have just been issued a "Get Out Of Jail Card."
Lady Justice, not only is she blind, but now she has suffered embarrassment.
No.983
3 comments:
Very thought provoking. Using trickery to get sex is just as bad as using force. And it does present a sticky situation where the use of "date rape drugs" is a factor. What are these people thinking?
Me don't know whether to scratch me claws against the blackboad or howl at the moon.
Me be always prepared to encounter stupidity, but not from judges.
In some sense we all use trickery to get laid, but there be obvious exceptions.
STUMPED
In some cases it is a very fine line that separates acceptable from unacceptable behavior in these cases. It looks like a miscarriage of justice but without knowing all the details it's hard to tell.
I used to date someone who had an identical twin but I don't believe I could have confused the two even in the dark.
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