Abigail Finney was in her freshman year at Purdue University in Indiana in February 2017 when she fell asleep in her boyfriend’s dorm room. During the night he snuggled up to her in bed in the pitch black, his hand grazing her breast, and they began having sex.
She soon stopped to go to the bathroom and, when she returned, discovered, to her horror, that it wasn’t her boyfriend who was in bed with her.
Was it rape?
Ms. Finney thought so and went to the police, who arrested Donald Grant Ward, the 19-year-old impostor. Mr. Ward, a friend of her boyfriend’s, admitted that he knew he was tricking Ms. Finney; he was charged with two counts of rape, which carries a sentence of three to 16 years.
The Finney family connected with Joyce Short, an activist and sexual assault survivor who runs ConsentAwareness.net. Ms. Short, 70, wants a universal law stating that consent is “freely given, knowledgeable, and informed agreement.” This may sound obvious, but it’s actually not, because there’s no universal definition of consent in the United States. Each state defines it differently, if it defines it at all.
“Most people think all types of agreement are consent,” said Ms. Short, who has written three books and done a TedX Talk on the subject. “They’re not.” While Ms. Short does not equate trickery to obtain sex with violent rape, she does believe it should be a Class D or E felony, with jail sentences of one to four years and a fine of $10,000.
Ms. Short says there is a clear distinction between consent and assent. “Consent means ‘freely given, knowledgeable and informed agreement.’ Assent means ‘agreement on the face of it.’ So, when someone tells you a lie, you can be agreeing on the face of it but you’re not knowledgeable or informed. You can assent and agree, but that doesn’t mean you’re consenting.”
In Missouri, for example, “Assent does not constitute consent if it is induced by force, duress or deception.” In Tennessee, it’s considered rape if there’s “sexual penetration … accomplished by fraud.” In Alabama, it’s a misdemeanor, classified as “sexual misconduct,” if consent was obtained by the use of any fraud or artifice.
In some states — but not Indiana — it’s considered rape by deception if you impersonate a spouse or partner. The same is true for those who abuse medical privilege, like Larry Nassar, the doctor for the American women’s gymnastics team, who had told his patients that touching their genitals was medically necessary. He was sentenced to 40 to 175 years in prison.
Failure to disclose being H.I.V. positive is also a criminal offense nationwide, although states vary about not revealing other sexually transmitted diseases, such as herpes.
“Gender fraud” — when people misrepresent their birth gender to potential sexual mates — likewise remains a gray area. Sean O’Neill was convicted of gender fraud in Colorado in 1996, and five people have been convicted in the United Kingdom since 2012.
While there are laws to protect against “catfishing,” or online impersonation, they typically focus on identity theft for financial gain or fraud, said Brad Shear, a lawyer in Bethesda, Md., who specializes in sexual privacy and cybersecurity law.
But what happens when there’s no financial gain? That depends on where you live. In some states, “If you pretend to be a particular person such as Tom Brady and the other person is relying on that claim to consent to sex, that may be deemed a sexual assault,” said Mr. Shear.
In Iowa in April 2015, Michael Kelso-Christy, who was 23 at the time, created a fake Facebook account under the name of a man who had attended his high school. He messaged several women under this name, and one woman actually met him at her home, where she was waiting for him blindfolded, per his request. They had sex, and he left. Soon after, his Facebook account disappeared and he stopped messaging her. That’s when the woman realized he was an impostor, and called the police.
After an appeal by Mr. Kelso-Christy, Chief Justice Mark Cady ultimately ruled in the woman’s favor, noting that Mr. Kelso-Christy had denied her the “‘freedom of choice’ that breathes life into our sexual abuse statutes.” He was sentenced to 10 years in prison.
But the law remains fuzzy in many locales.
Some worry that legislating deception is a slippery slope, because where do you draw the line? Is it deception if a woman dates two men concurrently and they don’t know about each other? Or what if you inject Botox into your crow’s feet and say you are younger than you are, or say “I love you” in order to have sex, but don’t mean it? In 2014, a sexual assault by fraud bill was introduced in New Jersey after a woman was impregnated by a man who falsely claimed to be a British spy. The bill went nowhere.
In February 2018, Donald Ward was acquitted in the Indiana case and his record expunged. Kirk Freeman, his lawyer, argued that lying and deceit didn’t count as rape. In January of this year, legislators introduced two bills that added a definition of deception to Indiana’s rape law, and also defined any sexual activity as rape if there was no consent. Neither bill was heard.
That hasn’t stopped other legislators, in other states, from trying to address the issue. As a result of Ms. Finney’s case in Indiana, Representative Mandy Powers Norrell, Democrat of South Carolina, introduced her own rape by fraud bill, which is supposed to be introduced in the next few months.
“Most states have ‘kidnapping by force’ and ‘kidnapping by fraud’ laws,” said Colin Miller, a professor of law at the University of South Carolina School of Law, in Columbia, who helped draft the bill. “The former is abduction. Kidnapping by fraud is if I tell them a lie to get them to accompany me to a location. It’s the same thing with rape by deception. If someone is pretending to be someone’s boyfriend or spouse and they think they’re consenting to a sexual act with that person, that seems to be rape by fraud in the same way as kidnapping by fraud.”
Ms. Short is hopeful that the bill will pass. “No one should be tricked, deceived, coerced, violently overwhelmed, drugged or intoxicated into sexual conduct,” she said. “Everyone has the right to determine who they engage with sexually based on both knowledge of the action and clear and informed knowledge of the actor.”
Abby Ellin is the author of “Duped: Double Lives, False Identities and the Con Man I Almost Married.”
