Rape by deception

Rape by deception is a crime in which the perpetrator has the victim's sexual consent and compliance, but gains it through deception or fraudulent statements or actions.

In English law, the basis for such claims is "very narrow", as ruled by the Court of Appeal in R v Linekar [1995] 3 All ER 69 73. Past cases where deceit has negated consent and rape has been ruled, include R v Assange and R(F) v DPP (the sexual act was performed in a way that broke a condition agreed previously), and R - v - McNally (deceit as to gender). The 1956 Act contained a ground of "procuring intercourse by false pretences" but this was abolished in the 2003 Act.

Two notable cases where this issue arose:

In 2008, it was reported that a Massachusetts woman, Marissa Lee-Fuentes, unknowingly had sex with her boyfriend's brother in the dark basement that she was sleeping in. He could not be prosecuted because Massachusetts law requires that rape include the use of force. Massachusetts State House Representative Peter Koutoujian crafted rape-by-fraud legislation in response, but it has yet to pass.

In Norwalk, California, on February 20, 2009, Julio Morales snuck into a sleeping 18-year-old woman's darkened bedroom after he saw her boyfriend leave. The woman said she awoke to the sensation of someone having sex with her and assumed it was her boyfriend. When a ray of light hit Morales's face, and the woman saw he was not her boyfriend, she fought back and Morales fled. The woman called her boyfriend, who then called the police. Julio Morales was convicted of rape under two concepts. He was guilty of rape because he began having sex with the woman while she was still asleep and, therefore, unable to consent. He was also guilty of rape-by-fraud because he had impersonated the woman's boyfriend in order to gain her consent. However, an appellate court ruled that the lower court had misread the 1872 law criminalizing rape-by-fraud. The law stated a man is guilty of rape-by-fraud if he impersonates a woman's husband in order to get her consent. The woman in this case was not married, and Morales had impersonated her boyfriend, not her husband. Because of this one technicality, the appellate court overturned Julio Morales's rape-by-trickery conviction in People vs. Morales in 2013. To close this loophole in California's rape-by-fraud law, Assemblyman Katcho Achadjian (R-San Luis Obispo) – who tried to introduce a similar bill in 2011 – introduced Assembly Bill 65 and Senator Noreen Evans (D-Santa Rosa) introduced Senate Bill 59. The two bills quickly passed both houses without one dissenting vote, and were signed into law by Governor Jerry Brown on September 9, 2013. Morales was later re-tried on the basis that the woman was asleep and re-convicted to three years in a state prison, which he had already served.

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