Consent, Not Foreplay Fibs, Should Define Rape

Print More

Wendy Murphy(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.

Court Focuses on Force

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.

Gray Area Too Vast

Yes, this crime would enable the prosecution of twins who rape their brothers’ girlfriends and fake doctors. But it might extend to men who pose as rock stars or otherwise inflate their resumes in a ruse to get women into bed. The gray area was too vast.

At the same time, the "rape by fraud" proposal wouldn’t cover the types of behavior that really should be criminalized, such as when a mentally ill woman is subjected to unwanted sex by a predator looking to take advantage of a vulnerable person. (Right now it’s a crime if the victim has retardation, but not if she suffers from a delusional disorder.) Or when a therapist takes advantage of a trust relationship and convinces a patient to have sex. These abuses are never prosecuted because physical force isn’t necessary to coerce the victim’s consent.

What we really need is a law that simply allows for the prosecution of rape without force. Period. If force is used, we’ll call it rape with force.

We already have exactly these types of laws in place for crimes against our property.

If you take my stuff without my consent, it’s called larceny. If you also use force, it’s called robbery.

But if you take my bodily integrity without my consent, it’s not a crime at all, unless you also use force. Crazy, right?

The U.S. Supreme Court has defined rape as the most severe insult to the self, short of murder; worse than any crime against property. Yet the law protects stuff better than it protects women’s bodies.

No Perfect Way

There’s no perfect way to pass laws that make people respect each other.

But rape without force is a good choice. It covers the fake doctor cases and much more, but doesn’t make a felony out of an occasional foreplay fib.

It’s a subtle distinction but one that matters, because the focus is not on whether the offender’s actions provided a substitute for the element of force, but rather, whether the victim’s choice was "knowing" and "voluntary."

This doesn’t forbid fantasy foreplay but does require that my decision be the product of free will. It means I can choose to have sex with you if you pretend to be a cowboy, if you pretend to beat me with whips and chains and even if you pretend to belong to a certain religion–so long as I know you’re pretending.

But if you know I wouldn’t have sex with you (condom-free) if you have AIDS or if you really hit me with chains or if you know my religion forbids sex in certain circumstances, and you lie about any of it, you’ve interfered with my "knowing" consent and committed the crime of rape "without force" because it was done without my freely given consent.

Wendy Murphy is adjunct professor at New England Law/Boston where she teaches a seminar on sexual violence. She’s a former sex crimes prosecutor and author of "And Justice For Some." An impact litigator who specializes in violence against women, Wendy consults and lectures widely on sex crimes, violence against women and children and criminal justice policy.

Would you like to Comment but not sure how? Visit our help page at

For more information:

Israel releases Arab man convicted of ‘rape by deception’ from house arrest:

7 thoughts on “Consent, Not Foreplay Fibs, Should Define Rape

  1. A Jewish woman has consented to sex, she performs an act of love with a man she later finds out the man is a Palestinian and crys rape. I have a serious problem with this issue, if anyone believs this man should be in jail you need to rethink your morals.This is the problem with the womans movement and why I roll my eyes when I hear rubbish like this.I thought my husband was Italian when I first dated him, turned out he was Portugues, if I divorce him maybe I will have him charged with rapeing me for over twenty years. Give me a break with this garbage shame on Wedy Murphy for this article

  2. After having read the full story of the Israeli case I think it’s clear the Palestinian man is not guilty of rape under any definition. The accuser assumed he was Jewish, but he never explicitly stated his religious or ethnic background as such. It is beyond the court’s scope to speculate what he may have wanted the woman to believe.

    However, in the case of the Massachusetts twin, he had no doubt his brother’s girlfriend would mistake his identity and took advantage of that certainty.

    Rape can definitely occur without force, even without deception. From a medical standpoint, I can only imagine the broad grey area that exists with women of varying cognitive deficits. Where does one draw the line?

  3. “Rape: the unlawful compelling of a woman through physical force or duress to have sexual intercourse.” (

    Duress = compulsion by coercion.

    It really isn’t far-fetched at all to call what the Palestinian man did rape. All of you seem to have an extremely narrow-minded view of what constitutes “rape” and I think this article is great because it attempts to expand our view of this crime. Limiting “rape” to simply a man penetrating a woman against her will is very dangerous because we end up having cases like Wendy Murphy mentioned — the twins story?? Ridiculous.

    I think for the safety of EVERYONE, it is crucial to expand our definition of rape to include coercion and deception. How can any of you defend a man blatantly lying to a woman to get her into bed? She may have consented, but she only consented because she was lied to.

  4. Rape was not taken seriously by judges and lawyers until the early 90s when a few rape victims began groups and proposed legislation in California. These activists began educating judicial officers by informing them that rape is a crime, but it was an uphill battle. At the time, I had a talk radio show, Issues of the Day,and I interviewed women who had been raped. I learned that a key issue for victims of rape is admitting to anyone that they’d been raped because they felt embarrassed and humiliated by the interrogation and medical exam as well as testifying on a witness stand. As an author of a powerful newly released book, “Fight Back Legal Abuse,” which includes 25 years of research, I touch on many serious issues that women encounter in the courts, such as, gender bias, which has been a serious problem for rape victims when testifying in court. Many male judges and lawyers didn’t think of rape as a crime, even though, rape can be a violent crime, as well.

  5. I am a man, i made this account to specifically address something that has bothered me in the past. What happened to these women is horrible, and i personally think all rapists should be imprisoned for life with no parole option, or just executed, i have no tolerance for rape. However many people forget that men can be raped too, and in many cases its because he has been lied to by a woman. I am in the military, and this has personally happened to me, met a woman, took her home only to find out she is married, and she told me when i asked her that she wasnt. Personally i think that would fall under that category, was i pissed yes, and i told her how disgusted i was by her. But i just feel like too many people feel rape is a crime conducted ONLY by men, i agree that it is mostly commited by men, but women are capable of the same act, especially in the respect of rape, by lying.