TRENTON — Imagine this: A man woos a woman to bed with tales of his riches, fast cars and a vacation home in Monaco. But he actually lives in his mother’s basement.
Or this: A seemingly wealthy widow convinces a younger man to sleep with her on the notion that they may marry and he’ll inherit her money. In reality, she’s broke.
In both cases, someone lied about his or her status in order to have sex with someone else.
Under a bill recently proposed by a south Jersey lawmaker, such actions would not only be considered dishonest. They could prompt charges of rape.
Earlier this month, state Assemblyman Troy Singleton (D-Burlington) introduced the bill (A3908), which would create the crime of “sexual assault by fraud,” which it defines 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.”
Singleton decided to introduce the legislation after talking to Florence resident Mischele Lewis, who had been duped into paying $5,000 to her boyfriend, Cherry Hill resident William Allen Jordan, for what he claimed was a security clearance. Jordan said he was a British military official, but it turned out he was a serial bigamist and scam artist who pleaded guilty to defrauding Lewis on Nov. 10.
Prosecutors had initially tried to charge Jordan with sexual assault by coercion, but a grand jury refused to indict him on that charge.
“I truly believe that we have to look at the issue of rape as more than sexual contact without consent,” Singleton said. “Fraud invalidates any semblance of consent just as forcible sexual contact does. This legislation is designed to provide our state's judiciary with another tool to assess situations where this occurs and potentially provide a legal remedy to those circumstances.”
As written, the bill doesn’t consider sexual assault by fraud any less serious than other types of sexual assault that are already on the books. It could be a first degree or second degree crime depending on “the circumstances surrounding the act,” punishable with 10 to 20 years in prison in the former and 5 to 10 years in prison in the latter.
"The punishment aspect, that part we didn’t touch. The prosecutors and the judges and the jurors would be able to use discretion,” Singleton said.
Singleton said that he’s open to refining the bill so it’s not abused.
“It’s my intention, as the bill is moved through the amendment process, to ensure that while we allow for judicial discretion we don’t want unintended consequences,” he said.
The issue of “rape-by-fraud" is the subject of a new book by New York City resident Joyce M. Short, who said she married a man who lied about his age, marital status, education and military service, among other things.
Short said that one of the main objections people have to the idea of sexual assault by fraud is equating it with violent sexual assault.
“My response to that is there are many ways to sexually assault a person. Violence is one of them. And there are no words that can come to relating the horrible violation of a person when that happens to them,” Short said. “But we should not look asunder. We should not simply cast away the concept that people are defrauded of sex.”
According to a memo by the Office of Legislative Services written at Singleton’s request, at least five states — Tennessee, Alabama, California, Colorado and Montana — have some sort of crime for sex by fraud. In Alabama, it’s a lesser offense than rape.
Alan Zegas — a prominent New Jersey criminal defense attorney who has represented many defendants accused of sexual assault — said the Singleton’s bill is far too broad and probably would not survive a constitutional challenge.
“What if a man were to say to a woman ‘I love you’ and engage in sex and he really didn’t love her? It could be as simple as that,” Zegas said. “The definition is so broad that it doesn’t put the citizens of the state on fair notice of what it is that constitutes the crime.”
Yale Law Professor Jed Rubenfeld in a 2013 article for the Yale Law Journal said that “’Rape-by-deception’ is almost universally rejected in American criminal law,” but that it shouldn’t be because “courts have held for a hundred years in virtually every area of the law outside of rape, a consent procured through deception is no consent at all.”
Rubenfeld said that in many states that do have statutes on rape by fraud, it’s only if the perpetrator impersonates the victim’s spouse or dupes the victim into having sex for medical reasons. But Rubenfeld said that’s because the case law is based on an outdated definition of rape that wasn’t really about the victim’s consent, but about her virtue.
“Rape law’s exclusion of almost all sex-by-deception claims followed from the fact that in such cases the woman had willingly had non-marital sex. Though deceived, she had willingly surrendered her virtue and thus could not claim rape,’” Rubenfeld wrote.