Chez Chesler

According to a wire service story (eg this AP Story by Denise Lavoie) "a half-century old [Massachusetts] state law that says an assault can't be considered rape if consent is obtained through fraud or deceit." In this case a pharmacist was accused of deceiving a woman by claiming he was a gynecologist and "raping" her in the back office of his pharmacy. (I suspect from the details that this was not genital intercourse, so even if he were convictable, there are legal technicalities on both sides. I suspect it was not "I am a gynecologist, and I've only been working at this pharmacy for 30 years because I like the hours better, so let's go in back and have sex" but rather "Would you like me to take a look at that rash? Oh, would you like me to do it someplace more private?" Attorney Wendy Murphy, who often speaks about women-as-victim issues excludes a lot of middles when she is quoted as saying "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." -- There is "playing doctor" and all sorts of other situations where one person examines another person's genitals that are not medical exams. Maybe the pharmacist should be investigated for practicing medicine without a license.) The article talks about a case last year where the Massachusetts Supreme Judicial Court (identified as the "Supreme Court" in the AP article) "determined authorities could not bring a rape charge against a man who was accused of impersonating his brother and having sex with the brother's girlfriend in a darkened room." Rape-by-deceit is a slippery slope. Would the boy from "Paradise by the Dashboard Lights" have been guilty of rape if he had not subsequently loved the girl for the rest of his life? Presumably he would be guilty of "seduction" -- MGL C 272 § 4 -- if he hadn't made her his wife, at least if she was up until then of chaste character -- is that still prosecutable? I was wondering, "What is that half-century old law?" I couldn't find anything in the vicinity of section 22 of Chapter 265 of the General Laws of Massachusetts, dating from the 1950s or otherwise, that said anything like "If the consent was obtained through fraud or deceit, it's not rape". The law does say "compels such person to submit by force and against his will, or compels such person to submit by threat of bodily injury" but the story suggested something more explicit. I was going to pose this as a question to the net.lawyers, but I did a little more digging. See this earlier story from May, 2007, in the case against Alvin Suliveres and cited a 1959 _case_ that held that under the existing rape law "fraud cannot be allowed to replace the force required under the law." The 2007 case would be 449 Mass. 112, SJC-09747 and cites the earlier case as Commonwealth v. Goldenberg, 338 Mass. 377, cert. denied, 359 U.S. 1001 (1959). (That case also distinguishes fraud in the inducement ["I will love you for the rest of my life"] from fraud in the factum ["I am my brother"], but said it doesn't matter here.) Bad reporter, sloppy, sloppy! (Granted she said "law", not "statute".)

Labels: rape, reporting, Wendy Murphy