Consent Revisited in Light of New Facts

In a previous post, I argued deception robbed sexual and marriage partners of their capacity to grant informed consent:

attempts to reduce consent to the simple act of saying “yes” actually ignore the ways in which fraudulently representing oneself may be coercive. We can hate the bigotry and prejudice that make the lies seem necessary without embracing deception.

I still think this is true, in principle. I believe that a person’s bodily inviolability is important enough that we should all be able to set the rules for who touches us and how, and that it’s wrong to violate someone’s rules for sexual touching, whether through force or deception. This same version of informed consent is why we punish fraud, and we should protect a person’s sexual autonomy more strictly than we protect their finances. Even bigots and transphobics have a right to this kind of protection.

However, something can be morally wrong without being legally wrong, and even legal harms come in degrees. Deception in a marriage could be grounds for annulment or for divorce, but annulment is much more serious than divorce, it voids the marriage itself as if it had never happened. Having sex with someone under false pretences can be a tort or a crime, and as a crime, it can be a misdemeanor or a felony. So just establishing that a wrong has occurred is only the start of the question: perhaps the more important question is adjudging the degree of wrongness and developing an equitable, proportionate punishment. This is the question of remedies: if something is wrong, what will make it right?

Looking further at the two cases, it now seems clear to me that the punishment is disproportionate and inequitable. Consider the case of Nikki Araguz, who allegedly misled her husband about her birth-gender. The problem here is that Araguz didn’t have the option of honesty, at least with regard to the state of Texas. Sex changes are not recognized there, which means that the Araguz marriage would be voided or annulled merely by the revelation that two people born male had been married. It’s one thing to suggest that the deception might have been grounds for an at-fault divorce: it’s another thing to say the marriage never existed, and should never have existed,  in the first place. This robs Thomas Araguz of the right to consent, given full information. That’s clearly more unjust than a minor deception about his wife’s birth-gender.

A similar problem arises with the case of Sabbar Kashu. Certainly, he acted wrongly, and to my mind he is guilty of at least a civil tort… battery, for instance, is the tort of unwanted touching, and if he had been honest, his touch would (apparently) have been unwanted. Rape-by-deception is not a new crime, in Israel:

In 2008, the High Court of Justice set a precedent on rape by deception, rejecting an appeal of the rape conviction by Zvi Sleiman, who impersonated a senior official in the Housing Ministry whose wife worked in the National Insurance Institute. Sleiman told women he would get them an apartment and increased NII payments if they would sleep with him.

High Court Justice Elyakim Rubinstein said a conviction of rape should be imposed any time a “person does not tell the truth regarding critical matters to a reasonable woman, and as a result of misrepresentation she has sexual relations with him.”

The precedent here has nothing to do with ethnicity or religion, and it seems reasonable enough, but again, even bigots have a right to bodily inviolability. However, a commenter at PrawfsBlawg notes that it’s not in keeping with the English common law tradition, which certainly doesn’t restrict Israeli jurists, but often drives American assumptions about justice:

At common law, fraud in the inducement, as occurred here, could not be grounds for rape, while fraud in the factum (e.g., doctor tells woman he is placing a medical instrument inside her during a pelvic exam but it is actually his penis) could. As long as the woman knew she was having sex, it was not rape, even if she was duped. The sole exception was where a woman was defrauded into thinking she was having sex with her husband. The theory, apparently, was that sex outside of marriage itself was a crime (adultery or fornication, depending on whether the parties were married to others), so that the woman, being a willing participant in one crime, could not claim a different crime occurred — sort of an “unclean hands” doctrine. See Anne M. Coughlin, Sex and Guilt, 84 Va. L. Rev. 1 (1998). Thankfully, we have mostly rejected that premise. However, there is still an unsettling “slippery slope” aspect of recognizing rape based on a fraud-in-the-inducement theory.

Distinguishing “inducement” from “factum” does seem like a reasonable way to proceed. It also addresses my troubled analogy with a rapist who uses an unloaded gun as a threat. But the Israeli practice could also work, so long as remedies and punishments are equitable. Here, they don’t seem to be: in addition to TWO YEARS of house arrest with an ankle tracker, Kashu now faces eighteen months imprisonment, for a crime that usually is punished as a slap on the wrist: a suspended sentence and time served.

Added to this, a lot of the news coverage has ignored that this case started as a traditional rape case. Andrew Sullivan quotes a reader:

A point which is rarely mentioned in the coverage of the “rape by deception” case – either by Israeli or foreign media – is that the case started out as a regular rape case. The woman claimed she was forcibly raped by Kashour. Once on the stand, however, the defense demolished her story and she admitted she lied and that they had consensual sex. She admitted that after learning Kashour lied to her, she felt humiliated and went to the police. It was at that point the prosecution came up with the plea bargain. A normal court would have just acquitted Kashour, but this court decided to convict.

Several further points:

1. If the woman had told the true story to the police in the first place, there would have been no trial, not to mention any conviction.

2. Kashour has no earlier convictions. In another “rape by deception”” case, which involved a lesbian masquerading as a man in order to have sex with women, she received only six months of suspended sentence. Kashour got 18 months of incarceration.

3. One of the three judges is Moshe Drori, who was embroiled in a scandal last year, when he refused to convict a very well connected yeshiva boy who admitted – and was filmed – running over a security guard with his vehicle. The security guard was an Ethiopian woman. Drori, a Jewish Orthodox, forced the guard to accept the apology of the yeshiva boy, and then invoked a judgment by 12th century scholar Maimonides (I shit you not), which says once an apology is accepted by the victim, the case is closed. And he closed the case. He is apparently a Maimonidas affectionado. The case was overturned in the Supreme Court, and this schtick cost Drori his chance at becoming a Supreme Court justice. Let’s say that a non-Jew masquerading as a Jew won’t stand much of a chance in the court of Judge Drori.

That’s neither equitable or proportionate. I do suspect there’s room here for a civil tort claim of some sort: if not battery, than intentional infliction of emotional distress. But not three-and-a-half years of detention and imprisonment.

Second Opinions