Whether Rape by Fraud Is Penalized Depends on Where It Happens!

As far back as 1865, rape by fraud was recognized as a heinous act in the state of Michigan. In People vs. Croswald the high court upheld the defendant’s conviction for rape by fraud and stated “the outrage upon the woman is just as great in these cases as if actual force had been employed.”

Ironically, the act of obtaining intercourse through material and false misrepresentations, rape by fraud, is only penalized in a few states. And the act of misleading a person to elicit love and affection, emotional rape, is not penalized at all.

Law Professor Susan Estrich staunchly advocated for rape laws to prohibit the same deceptions as a state’s laws of false pretenses or fraud. In all states, adult impersonation qualifies as a material fraud. 

Professor Estrich authored Real Rape, the first meaningful book to shed light on rape by fraud, is a noted political commentator for Fox News, the 1988 National Campaign Manager Dukakis-Bentsen, and the first female President of the Harvard Law Review, 

Some states penalize fraud in the factum while others prosecute fraud in the inducement. Fraud in the factum occurs when the victim is deceived that sexual intercourse is taking place. If a doctor indicates he's inserting a medical instrument but inserts his penis instead, he's conducting fraud in the factum. Fraud in the inducement would occur when the victim is fooled about the identity or some aspect of the identity of their sexual partner.

The following is the status of criminality for rape by fraud  in various states:

• Alabama-        Sexual Misconduct when consent is obtained by any fraud or artifice
• Arizona-          Fraud in the factum (nature of the act)
• California        Fraud in the factum (nature of the act)
• Hawaii-            Penalizes intercourse induced by deception, accomplished by fraud and obtained by ruse. Abolished distinction between fraud in the factum and fraud in the inducement.
• Idaho               Fraud in the factum (nature of the act)
• Michigan         Penalizes intercourse obtained by concealment
• Nebraska         Fraud in the factum (nature of the act). Penalizes intercourse obtained by deception as to the identity of the actor such as a person who poses as a fiance, husband or lover.  
• Nevada           Supreme Court ruling, McNair vs. State- Sexual assault language is sufficiently broad  and explicit to encompass conduct occurring as a result of fraud & deceit.
• New Jersey      Penalizes Fraud in the factum (nature of the act.) An overhaul of their criminal code eliminated the term "rape" in 2012. Currently, the terms "Sexual Assault" and "Sexual Contact" supplant "rape." Additional language states that affirmative permission to the specific act of sexual penetration or contact must be perceived as such by a reasonable person.  (The Criminal Law Digest of the State of NJ.) Watch for breaking updates for this state regarding the arrest of William Allen Jordan, a convicted sexual molester and bigamist. Additionally, victims of "sexual assault" in this state are entitled to a restraining order against the offender based on "Nicole's Law."
• Rhode Island   Prohibits intercourse obtained by concealment
• Tennessee       Prohibits intercourse induced by deception, accomplished by fraud and obtained by  ruse. Abolished distinction between fraud in the factum and fraud in the inducement.  A child who is a victim of statutory rape can be considered an  accomplice in their own rape, nullifying the statutory rape charge against the  accused.
• Utah                Penalizes intercourse obtained by concealment
• Virginia            Prohibits intercourse induced by deception, accomplished by fraud and obtained by  ruse.