a bird and a bottle

From the Annals of Law
May 10, 2007, 10:37 pm
Filed under: civil rights, criminal justice, feminism/s & gender, news, sexuality

Add this one to stupidest legal decisions of all time. A Massachusetts court ruled today that sex by fraud is not rape. Here’s the story, via TalkLeft: a woman got into the bed she shared with her boyfriend night and proceeded to have sex, she thought, with her boyfriend. Turned out, it was the boyfriend’s brother. She cried rape. The Court said no. According to the Mass. court, sex by fraud or deceit but lacking force is not rape.

Because that woman, she should have known.

Ick. Sort of reminds me of the recent Maryland case in which the court said that once a woman consents to sexual activity, she can’t withdraw that consent. Because, gosh darnit, silly woman, you should have known what you were getting in to. And a man can’t be blamed if he just wanted to finish the deed.

Sarcasm aside, I have to wonder: at what point does the legal system — created wholly by men and enforced mostly by them — fail to be a vehicle for progressive and/or feminist social change?


8 Comments so far
Leave a comment

Of course, we should always know, we should always fight, we should quit tempting them. Geez

Comment by goldenferi

Just when I thought being cynical about the law wasn’t worth it.

I’d blame the common law system, but Italy’s civil law was perfectly capable of creating a Supreme Court decisions that it wasn’t rape because the victim was wearing jeans and that if a man raped his 14-year-old daughter then her not being a virgin before the rape was a mitigating circumstance.

Comment by Alon Levy

Ick is right. But after reading over the story linked above, it seems to me that it is incumbent upon the legislature to change the law, rather than upon the court to interpret broadly.

Comment by professorplum

Beyond the legal issues, one also wonders about the relationships between the individuals involved. Did the boyfriend betray the trust of the girlfriend? Did a brother betray the trust of a brother? A terrible mess leaving lasting wounds.

Furthermore, when a criminal prosecution fails, is there room for a civil action?

Comment by Swampcracker

This is actually a pretty standard common law rule. As I understand it, however, it is not just the force requirement that provides the only relevant line. For instance, if you deceive a woman as to being her husband (and she is in fact married), even sans force, then that sort of deceit may still constitute rape. But, as in this case, deceit as to simply being a different person does not constitute rape without attendant force.

Comment by coleslaw

It may be the CL rule…but if so, it’s a good moment to depart from common law. Because the common law rule is outdated, backwards, and royally misogynist.

Comment by bean


Though it does make me wonder, bean. From your perspective, what are the 3 greatest forces behind the seeming mess that is criminal sexual assault law? For instance, I’ll guess your #1 is misogyny. You don’t think that explains it all away though, do you?

Comment by coleslaw

I think it all goes to the mental state of the dude. Was he consciously trying to pull a fast one or did he think – reasonably – that she was consenting to have sex with him, her husband’s brother? I’m guessing the former, but if the latter, then, hey.

Also, did she figure out who he was in the middle of the act and then try to squirm away only to have him keep her there? Is that the kind of consent that, once given, cannot be withdrawn, scenario? Or does that axiom only apply to after the fact, as in, bonker’s remorse? The latter is where it makes sense. Gee I guess I could follow your link…

Comment by Phoebe Love

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