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Rape by Fraud

Last week I was wandering around the web when I ran across an article about a rape conviction in Israel. The reason everyone was up in arms was because the circumstances were such that most people would not think of it as rape. An Isreali woman met a man that said he was too. They had sex and she later found out that he was actually Palestinian (and married). Based on his lie about his ethnicity, he was convicted of rape.  The internet is filled with cries of outrage and disdain as well as opinions of some that justify the conviction. Kentucky law does not provide for a "rape by fraud."  In Kentucky rape requires forcible compulsion or incapacity to consent.  This can be accomplished due to mental illness, mental disability, under 16 years of age or being physically helpless.  Kentucky's southern neighbor in Tennessee does provide for this:  39-13-503. Rape. (a) Rape is unlawful sexual penetration of a victim by the defendant or of the defendant by a victim accompanied by any of the following circumstances: . . . . . (4) The sexual penetration is accomplished by fraud. The Tennessee statute is the one which is the most straight forward as a rape by fraud statute. However, there only seem to be two cases where the appellate courts address this. In each, the type of fraud is similar to that which is in the the older legal thread. In each, the lie told was such that the person having sex thought they were having sex with an entirely different physical person than the one with whom they were actually having sex with. In State v. Mitchell, 1999, C.C.A. No. 01C01-9612-CR-00502, a man convinced women he was their boyfriend and that he had a fantasy that they would have sex while she was blindfolded. In State v. Brigman, 2003, C.C.A. No. M2002-00461-CCA-R3-CD, a man convinced young men that if they were blindfolded a woman would come and perform oral sex on the young male, but did it himself. Both of these seem to indicate that conviction for rape by fraud is a difficult case to prosecute which would only occur in incredibly unusual situations. As a criminal defense attorney I have seen a number of cases where a women claims rape if she feels like she was used, defrauded or even where there is regret for actions. Being charged, even if innocent, with rape can subject a person to great distress, incarceration if the defendant cannot post sufficient bond, loss of employment and removal from school or university. Best rule: don't defraud someone to try and convince them to have sex.  If you been charged or questioned about sexual misconduct or rape, hire an experienced criminal defense lawyer.  for consultation in Kentucky contact Michael Bouldin at 859-581-6453 or email at [email protected].

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