Massachusetts seks to criminalize "rape by fraud"- but questions arise about scope of law

(Original Post 2-2-08)

Two sexual assault victims were denied their chance to get justice after a loophole in a 50 year old law permits trickery to be used to obtain sexual "consent." Prosecutors were forced to drop rape charges against a Massachusetts pharmacist who posed as a gynecologist and examined two victims because of an outdated law which defines rape as sexual activity obtained by force instead of by fraud.

According to the AP story,

Police charged pharmacist Nicholas Creanza with rape after he allegedly lured the women into the back room of his Springfield pharmacy and gave them exams. Because the women consented to the exams, even though they were being deceived, by law it could not be considered rape, Hampden County prosecutors said in dropping the charges.

Justices of the Supreme Judicial Court urged lawmakers to close that loophole in the law in a 2007 case in which they found a man could not be prosecuted for rape for duping his brother's girlfriend into having sex.

The SJC's 2007 ruling came in the case of a Westfield man who was accused of impersonating his brother and raping his brother's girlfriend in a darkened room. The woman told police she was asleep alone in the bedroom she shared with her longtime boyfriend when a man came in, climbed into bed and had sexual intercourse with her. The woman said that during the intercourse she believed the man was her boyfriend, and if she known it was his brother, she would not have consented.

Because the assault were done using trickery and fraud instead of force, and also because of an outdated law, the fake gynecologist cannot be charged with rape, and therefore, charges were dropped.

"The facts and circumstances of this case clearly indicate that the victim's consent was obtained by fraud and deception. However, the Commonwealth is unable to proceed with the prosecution of this case in light of (the SJC ruling)," Assistant State's Attorney Elizabeth Dineen said.

Creanza was arrested in 2005 after two women told them he assaulted them at a Springfield pharmacy. One of the victims declined to file charges.

Wendy Murphy, a Boston attorney and woman's advocate who teaches courses of sexual violence, questioned the decision to drop the charges.

"It is not possible to consent to a medical exam by a nonmedical professional," she said. "If it's not a medical exam, what's left? It's a sexual assault."

In court papers, St. Clair said there was no evidence of rape or indecent assault and battery. He said the grand jury that indicted Creanza heard testimony that the woman was pregnant, and Creanza asked her if she was happy with her obstetrics care. When the woman said no, Creanza offered to make a referral. They then went to Creanza's office, where he performed an examination.St. Clair's memorandum said the woman never told Creanza she was uncomfortable or called out to the person in the next room.

Springfield police Sgt. John Delaney said he hopes the decision to drop the charges against Creanza will not have a chilling effect on rape victims."We can't be discouraged nor do we want victims to be discouraged when they come forward and something like this happens," Delaney said.

State Rep. Peter Koutoujian, D-Waltham, said he has been working with the Massachusetts District Attorneys Association to draft legislation that would add deceit and fraud to the rape statute."The way the law was written is the old understanding of what rape was. It was a forcible act," Koutoujian said."In fact, we know now through decades of work with victims that rape is not necessarily only a physical act. You don't need to use force in order to rape someone. It's really the act of consent that is more pivotal to the charge of rape."

Now 59, Creanza hopes to get his job back as a pharmacist. Neither he, nor his attorney had any comments.

The sexual assault victims in Creanza's case are still victims and still need healing. Creanza assaulted those women, but due to the unfortunate loophole, can't be charged. Consent cannot be obtained if there if trickery or fraud involved. There is also a fiduciary relationship between a doctor (whether a pharmacist or a gynecologist) and a patient which would have also precluded true consent. Here's hoping that the Massachusetts legislature gets moving on closing that loophole, and preventing a fourth victim. If the victims were 18 year olds involved with a high school teacher, there would be no loophole.

(Updated 5-7-08) Lawmakers in Massachusetts are angling to close this loophole, but the proposed law doesn't just criminalize fraudulent consent, it expands the definition of fraudulent consent to include false promises or misrepresentations to obtain sex that a reasonable person wouldn't have consented to.

The proposed law was drafted by state representative Peter Koutoujian, and is being supported by District Attorneys Joseph D. Early Jr. and Gerard Leone. The text goes as shown in this link:

Some commentators say that there are problems with the breadth and the criminalization of the wrong type of sexual "violators." Others say that sex between fiduciary figures and vulnerable victims should be criminalized. Eugene Volokh of the Volokh Conspiracy and a poster to the Huffington Post spells out potential problems:

So let's see how it plays out in the cheating situation. Alan and Beth are lovers. Beth has sex with Carl. She doesn't tell Alan (or, if Alan confronts her about his suspicions, denies it — that doesn't matter for purposes of the law), but then has sex with Alan again. That, under the law, is rape, so long as the jury or judge concludes that a reasonable person wouldn't have consented to have sex again with his lover had he known that she had cheated on him. Naturally, the same would apply with married couples, but this isn't even just a revival of criminal punishment for adultery — there's no requirement of marriage. (Note of course this would apply regardless of the sex, or sexual orientation, of the partners.)

And of course all this would require the case-by-case, jury-by-jury development of the Law of Reasonable Sexual Criteria, as Massachusetts courts have to decide whether a reasonable person would treat a sexual partner's poverty, age, promiscuity, infidelity, and other attributes as sexual deal-killers.

(Would it matter, by the way, how appealing the other person otherwise is? Would the jury have to decide whether the "victim" would have had sex with the "rapist" in any event, because the victim was so infatuated, or because the rapist was so hot? "True, Angelina Jolie didn't tell the victim that she was still in a sexual relationship with Billy Bob Thornton, but a reasonable man would have had sex with Angelina Jolie no matter what he knew about her"?)

Volokh has more about the issue of criminalization of sex obtained using false pretenses, and there is interesting discussions about when or whether it should be criminalized. In certain cases, like lying about the reason about the sexual encounter or relationship, civil remedies have been denied. Fake doctors and pretending to be another person should obviously be criminalized, as is obtaining consent while concealing an STD, but the key question is, where to draw the line?