Raping by lying

“You Were Duped Into Saying Yes. Is That Still Consent?” (New York Times, March 5):

Imagine the following hypothetical situation: Frank and Ellen meet at a night course and end up getting drinks together after class several times. The drinks start to feel like dates, so Ellen asks Frank if he is married, making it clear that adultery is a deal-breaker for her. Frank is married, but he lies and says he is single. The two go to bed. Is Frank guilty of rape?

To many feminist legal scholars, the law’s failure to regard sexual fraud as a crime — when fraud elsewhere, such as fraud in business transactions, is taken to invalidate legal consent — shows that we are still beholden to an antiquated notion that rape is primarily a crime of force committed against a chaste, protesting victim, rather than primarily a violation of the right to control access to one’s body on one’s own terms.

The author, Roseanna Sommers, is a law professor and she essentially concludes that Frank did rape Ellen.

If the goal of “feminist legal scholars” is to help those who identify as “women”, I wonder if lying = rape will actually be helpful. Perhaps the theory is that this will be good for those who identify as “women” eager to file rape lawsuits because it is almost exclusively those who identify as “men” who lie to obtain consent. But the hypothetical example isn’t comprehensive. If Ellen is having sex in order to turn a profit via child support, for example, Frank being married actually improves her chances of getting consistently paid for 23 years (if Frank can’t pay, his beleaguered spouse will work and pay). What if Ellen were to say “It’s okay because I’m on the Pill”? She still has a good claim for $2 million in tax-free child support, but now Frank can file a civil lawsuit against her for rape and receive some of that money back (and then Ellen can file a child support modification lawsuit saying that Frank’s new wealth entitles her to higher monthly checks?).

Let’s tweak the story a little, to align it with a common lie

Frank asks Ellen if she has previously slept with more than 100 sex partners, making it clear that being a Tinder super user is a deal-breaker for him. Ellen is Tinderlicious, but she lies and says she hasn’t had sex with anyone since the Obama years. The two go to bed. Is Ellen guilty of rape?

Would it be a positive, from a feminist perspective, for Ellen to face a lawsuit in which sexual history is a legitimate subject for cross-examination?

How about financial matters? “Do Americans marry for love or money?” (MarketWatch):

Some 56% of Americans say they want a partner who provides financial security more than “head over heels” love (44%), a recent survey released by Merrill Edge, an online discount brokerage and division of Bank of America Merrill Lynch BAC, +1.18%, found. This sentiment is held in almost equal measure by both men and women (54% and 57%).

Should someone who identifies as a “woman” be exposed to a rape lawsuit because she purportedly told someone at a club that she expected to be promoted to a lucrative executive position that, in fact, did not materialize and that a reasonable person should not have expected? After a year of sex without the promotion materializing, the “duped-at-the-club” person now has a rape claim?

What about people who have difficulty remembering what they said years ago? “New state law extends the statute of limitations for rape in New York” (CNN):

New York Gov. Andrew Cuomo signed legislation Wednesday that extends the statute of limitations for certain cases of rape and other sex crimes. He was joined at the signing by actresses… And under the law, victims now have 20 years in which to bring a civil suit for the offenses.

(and maybe Governor Cuomo was joined by some of those actresses after the signing as well?)

Suppose that a plaintiff sues Dianne Feinstein, alleging that the 87-year-old senator committed rape by lying in 2000, when she was 67 years old. That’s within the statute of limitations for rape, but are 20-year-old statements within the likely memory of an 87-year-old? Unless Feinstein is much sharper than the average 87-year-old and can testify convincingly, the $88 million that she acquired via marriage can be mined out by the plaintiff?

The good news is that the taxpayers of Michigan paid Professor Sommers to think about these issues! (or, if $billions for universities is buried somewhere in the latest $1.9 trillion spending package, perhaps taxpayers nationwide paid for this idea)

The scales of Justice, Gainesville, Florida, January 2021:

18 thoughts on “Raping by lying

  1. Next to none of that would be enforceable, since a lot of it is going to be he said / she said. And, unlike university kangaroo courts and industry HR troikas the real courts have presumption of innocence and standards for evidence. The only winning party will be lawyers.

    …which is the whole purpose of this bs. Dems are the party of lawyers and pharmas (and government parasites, too).

    • averros: There isn’t a “presumption of innocence” in a civil rape trial in which a plaintiff seeks cash. So a plaintiff could easily win a “they said/they said” (gender neutral) matter by being more convincing. Even in the criminal trial world, any issues with “they said/they said” can be addressed by bringing in experts who weren’t there, other people who might or might not have had sex with the defendant, etc. In the Bill Cosby matter, for example: “In the first trial only one other accuser had been allowed to testify. … Prosecutors in the second trial also called a sexual assault expert to testify about common “rape myths,” such as the belief that victims report their crimes quickly and cut off all contact with their attackers. … Perhaps most importantly was testimony from five other women who told jurors they believed they too had been drugged and sexually assaulted by Mr. Cosby in separate incidents in the 1980s.” https://www.robertreeveslaw.com/blog/guilty-bill-cosby/

  2. Scales of justice are missing the point of mechanical scales. And where are traditional blindfold and robe?

    • LSI: The lack of mechanical scales is an improvement because it enables the judge to dispense justice however he/she/ze/they thinks is best, unconstrained by the respective weights of evidence on both sides.

  3. “Raping by lying”

    Can this logic be extended to elections, or no?

    The consent to be governed was conditioned on the governing telling the truth…

  4. When you buy a used car, “Caveat Emptor” still applies. If the previous owner isn’t being honest with the maintenance history and their own personal history with the car, when you slap down the money and later find out that it was all just a wax job and an undercarriage wash, but the car is falling apart – that’s your fault. And without going into detailed legal theories, I think that should apply when you’re out there in the dating market looking to find a relationship and/or just get laid. If you can’t figure out in advance what you’re sleeping with, whether they’ve concealed something from their background or not, here’s an idea:

    Keep it in your pants and/or keep your legs closed. Ask a lot of questions and if anything rubs you the wrong way, bail. And if you don’t like the results after that – hey: you know people lie. You lie. Your next door neighbor lies. You lied to your parents. Your brother and sister lie all the time. And it’s your fault if you’re a moron.

    It has nothing to do with rape. It has everything to do with the perpetuation and excuse-making of moron culture. [And I know, some of the best at this are the diametrical opposite of morons.]

    I’m trying to find the video of Tom Hanks in Air America where the guy who played Yung Duk Dong in Sixteen Candles appeared and said: “You know, there’s a lot to be said for playing with yourself!” It’s sad that it is this way, but people are pretty well screwed up at this point.

    • I call this the Autobahn Theory of Dating, after one of my favorite Rallycar drivers back in the 1980s, talking about speed limits on the German Autobahn (I’m paraphrasing): “You can drive as fast as you want. If you screw up and crash, it’s your fault.”

    • Sorry the movie was “Volunteers” but the character was correct – Gedde Watanabe (Long Duk Dong in “Sixteen Candles”) as “At Toon.”


      I think we should cancel all the reruns of this movie and burn the rest of the copies. That would be a shame, because Watanabe’s character was way ahead of his time with that advice. Go home and play with yourself. It’s not worth it.


      “When ***Sargent Shriver*** [emphasis mine] was given the script to read by Volunteers Director Nicholas Meyer, Sarge complained that the script was spitting on the American flag and demanded changes in the script. The agency asked Mr. Meyer to make three alterations: 1) Change Thailand to Burma, because the Peace Corps never was in Burma; 2) Don’t mention the C.I.A. in the same breath with the Peace Corps; 3) And change the name Peace Corps to something else.”

  5. I shall posit that for the writer and commenters of this blog, sex with anyone other than one’s spouse is entirely hypothetical.

    It also is apparent that if one is to have sex with someone other than one’s spouse, the financially safest choice of partner is someone else’s spouse.

    Also from this blog — promiscuous male dentists are at great risk from sexual predators.

  6. None of which is to say that your hypotheticals aren’t interesting to law students looking at careers as divorce lawyers, because they’re awesome! And someone will write an exam that some other schlub has to type so they can be printed out, handed out, and then given to law students so they can sweat their legal muscles and attempt to answer them and be graded on them. I think you have a fall back career as a law professor, especially given the rapid degeneration of our world into the permanently idiotic.

  7. Finally, a video from one of my favorite YouTube mechanics, Ford TechMakuloco, who explains why an independent inspection is crucial whenever you’re doing something as mundane as buying a *used truck*. If you’re in the dating market and you can’t even follow the advice you’d take when buying a used car, it’s your fault and you’re the idiot, not the victim.

  8. If we can take this interpretation of rape from merely explicit transactional requirements for the relationship/sex (“I’m only consenting to this relationship if you’re unmarried”) and upgrade it to any “fraud” (lies), where information was presented by one party without an explicit requirement being stated then we can create some really mindbreaking scenarios:

    A: “I make a million a year” (lie)
    B: “I’m not interested in my partners’ money” (lie)

    After sleeping together, B finds out A doesn’t actually make that much and sue for fraud-based rape, revealing their interest in their partner’s money, causing A to countersues for fraud-based rape. Since both statements were provably lies, the courts find in favor of both claims. They raped each other simultaneously!

  9. Can’t women sabotage birth control and still stick the guy with child support?

  10. Now in my twilight years, my last vice is Aeropress coffee. Do I have any legal exposure?

  11. How about religion? If you conceal your religious background in an attempt to either accumulate poontang/poonwang/pooncash are you guilty of rape?

    I’d like to know because for a long time, no matter how hard I tried, Jewish women wouldn’t sleep with me. For a while I thought that was a problem, but now I don’t know.

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