By Wendy Murphy
WeNews contributing editor
Monday, August 23, 2010
Rape is subject to various legal definitions around the world. Wendy Murphy says a Massachusetts Supreme Court requires too much evidence of physical force and argues for two categories of rape: with and without force.
(WOMENSENEWS)--A Palestinian man was recently convicted of rape by an Israeli court after he had sex with a Jewish woman who believed he was also Jewish.
The court said in its ruling that the man committed "rape by deception" because the woman would never have consented to sex had she known he was Muslim. Focusing not on the specific religion of the offender, but on the nature of free choice itself, the three judge panel wrote:
"The court is obliged to protect the public interest from sophisticated, smooth-tongued criminals who can deceive innocent victims at an unbearable price, the sanctity of their bodies and souls. When the very basis of trust between human beings drops, especially when the matters at hand are so intimate, sensitive and fateful, the court is required to stand firmly at the side of the victims--actual and potential--to protect their well-being. Otherwise, they will be used, manipulated and misled, while paying only a tolerable and symbolic price."
A few years ago, a young woman in Massachusetts went through something similar, only the result from the court, and the reaction of lawmakers, was quite different.
The victim awoke in her boyfriend's bed in the middle of the night and had sex with what turned out not to be her boyfriend, but her boyfriend's identical brother who sneaked under the covers and deceived her. He was convicted of rape on the theory that there can be no knowing consent if a woman wants to have sex with Johnny but ends up with Fred.
The Massachusetts Supreme Judicial Court overturned the conviction, reasoning that even if she didn't knowingly consent, the perpetrator didn't use force. Without force, there is no crime.
The court could have said there was force because tricking someone into consenting is the kind of force the Israeli court sought to prevent in its ruling, and courts in the United States routinely interpret "force" to mean whatever they want.
One example: A New York court recently held that force was present when a man, without consent, groped a woman's genital area while she was clothed. The court ruled that "such unwanted contact " . . . [e]ven if done lightly . . . is "forcible" because "women are entitled to be protected from unwanted, physical sexual contact by males."
In Massachusetts, as in many states, the "force" bar has been set much too high because there can be no crime of rape--even if all agree there was no consent--unless the force used was more than that which was necessary to complete the sex act. This puts many types of unwanted, nonconsensual sex beyond the law's reach, thereby, as the Israeli court wrote, devaluing "women's bodies and souls."
Another Massachusetts example of this devaluing involved a pharmacist who pretended to be a doctor and told pregnant women he could not fill their prescriptions without first conducting a vaginal examination. He had them accompany him to a private location where he conducted a penetrating genital "exam." He was charged with rape but the charges were dropped when the prosecutor decided that he could not prove rape because the guy used no "force."
Well-intentioned legislators in Massachusetts came to the rescue and proposed the creation of a new crime called "rape by fraud," which would cover perpetrators who use deception to cause victims to consent to sex. The idea was quickly ridiculed as over and under inclusive.