News + Insights from the Legal Team at Zalkind Duncan & Bernstein

Massachusetts Legislators Should Be Wary of Criminalizing “Rape by Deception”

Dr. Roger Ian Hardy, a Massachusetts fertility specialist, was a recent beneficiary of the Massachusetts definition of rape, as “sexual intercourse with another compelled by force and against the victim’s will or compelled by threat of bodily injury.” Dr. Hardy has been accused of molesting multiple female patients during gynecological exams and procedures, under the guise of providing medical treatment. As horrifying as the allegations are, the Middlesex County District Attorney has stated that no charges will be brought, due to what the Boston Globe calls an “apparent gap” in the law. At least as to the crime of rape, that conclusion is probably legally correct—but legislators should be careful, if they seek to close that gap, not to create deeper problems by sweeping all sex that results from any form of deception into criminal conduct.

Massachusetts courts have held that obtaining sex through fraud is not rape at least since 1959, when the Supreme Judicial Court decided Commonwealth v. Goldenberg. Goldenberg, another doctor, had sex with a patient who came to him for an abortion, claiming that the sex was part of the procedure. The Court held that he hadn’t raped her, because he hadn’t used force–she consented to the act, although under false premises. If Goldenberg were the only case to that effect, I suspect the District Attorney here would prosecute Dr. Hardy and argue that its holding is outdated, and that in view of the law’s ongoing evolution in this area the Supreme Judicial Court should overrule it. But in 2007, in Suliveres v. Commonwealth, the SJC upheld Goldenberg (in a case in which a man pretended to be his twin brother in order to have sex with  the brother’s girlfriend) and said that the legislature had ample time to act to change the law if it disagreed with the result in that case; because it hasn’t acted, the law stays the same. These cases certainly foreclose a successful prosecution for rape in Dr. Hardy’s case. (That said, I find it surprising that the District Attorney has not charged him with indecent assault and battery, which has different elements, does not require force, and arguably could apply.)

On the facts of this case–or of Goldenberg–it is troubling that the D.A. does not view the law as punishing someone who takes advantage of a position that carries a great deal of authority to abuse patients’ trust for his sexual advantage. But if the legislature does act, it should narrowly address the circumstances where medical professionals lie to or inappropriately touch patients rather than change the requirements of the rape law to criminalize what has been referred to as “rape by deception.” A law treating all sex obtained via fraud as rape would sweep extremely broadly–what about the person who misrepresents his sexual history, or his feelings for his partner, or his intentions regarding their future relationship? While we might be tempted to trust in prosecutorial discretion to ensure that the law is applied only to genuinely serious misrepresentations, that discretion could just as easily result in the unfair and discriminatory application of the law.

Concerns about the potential reach of a law criminalizing “rape by deception” are not mere paranoia. In 2010 Sabbar Kashur, a Palestinian from East Jerusalem was jailed in Israel for rape. His crime? Having consensual sex with a Jewish woman who was under the impression that he, too, was Jewish. In 2015 a woman in the U.K. was convicted of sexual assault after having a two-year relationship with a woman who believed her to be a man. If Massachusetts legislators choose to respond legislatively to Dr. Hardy’s case, they should take care to ensure that these prosecutions could not happen here.

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