The big problem with New Jersey's 'rape by fraud' bill

Much has been made lately of new legislation, like California's affirmative consent law, that is intended to broaden the definition of sexual assault. The hope is that such laws will provide greater protections to people at risk of sexual violence. But will it?

Amanda Taub at Vox argues that the fear of sexual assault imposes undue burdens on women's schedules and psychological bandwidth, amounting to a "tax" on women. Taub is absolutely right to note the disproportionate hardship inflicted on women by the lingering possibility of sexual assault. She's also right to recognize that the role of law in an equitable society is to provide protections that even out the unfair impositions stronger social groups make on weaker ones. The trouble is, expanding legal definitions of sexual assault seems primed to do the opposite.

Consider legislation introduced by New Jersey assemblyman Troy Singleton, which would create a new category of crime, "sexual assault by fraud," defined as "an act of sexual penetration to which a person has given consent because the actor has misrepresented the purpose of the act or has represented he is someone he is not."

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At first glance, categorizing sex under deceptive circumstances as rape appears to make some sense; ever-developing notions of consent tend to (rightfully) identify informed consent as the only sort that counts. And yet informed consent in matters of medicine and business exchange are markedly different: It's one thing be informed of the risks of a kidney transplant before agreeing to go through with the procedure, and another to be informed of every detail of your doctor's identity and life before making your decision. By the lights of this new legislation, sexual-assault-by-fraud is a crime not of concealing details pertinent to outcomes — like having HIV or not using contraception — but of concealing details pertinent to a person's identity and state of mind.

And this is a more disturbing approach when it comes to arranging laws around sexual assault that are intended to protect classes of people who are typically ill-secured by current laws. Some countries and states already maintain rape-by-fraud statutes, but as promising as they may be in theory, they are nonetheless applied by the people and cultures they are situated within. In Israel, for example, an Arab man was convicted of rape in 2010 for presenting himself as a Jewish bachelor interested in a relationship, which led to a quick tryst with a Jewish woman who filed charges against him only after learning that he was an Arab.

Yet as more evidence from the 2010 case has come to light, deficiencies with the law have become clear. It now appears that the woman who filed the charges did so based mainly on her desire to have a real relationship with the man, rather than a fling. It was the Israeli courts and media, on the other hand, that seized upon the defendant's ethnicity. In the final analysis, nobody won: the plaintiff's genuine grievance wasn't redressed and the state appeared backwards for making the distinction between Jews and Arabs meaningful enough to prosecute.

After all, a fairly broad proportion of identity is difficult to verify. If a person presents himself, for example, as a "believer," it's challenging to imagine a litmus test we would be comfortable with the state endorsing. Further, there have been historical understandings of identity — such as the Jim Crow-approved "one-drop rule" — which deny individuals the ability to assert their own identities, instead relying on prejudiced notions of race and identity that are socially inscribed. With statutes that aim to determine whether or not a person has misrepresented their identity, it seems some measure would have to be produced to distinguish truth from falsehood even in cases where doing so would rely heavily upon biased notions of complex categories — race, gender, ethnicity, religion.

And it's unlikely that the people who are regularly burdened with the sorts of "taxes" Taub recognizes would come out on top in these rulings. In cases of personal misrepresentation — or in cases wherein a plaintiff feels moved to argue that a partner's identity was misrepresented to ill effect — we will likely always be dealing with a socially-lesser identity being fudged to a more beneficial one: A poor person, for instance, pretending to be wealthy. But this means that statutes pursuing misrepresentation as a form of sexual assault will likely target those whose identities are already deemed less socially valuable.

At The Boston Review, Judith Levine points out that "affirmative consent laws represent a fantasy of a benign state — or in this case, state-funded institution — innocent of self-interest, racism, or class bias…" which seems equally true of legislation that would seek to define categories of identity in order to adjudicate accusations of sexual assault via fraud. So long as the justice system is fraught by prejudices, laws that empower that same system the power to target those with particularly vulnerable identities will do nothing to make anyone safer.