CHALLENGING THE USE OF FRAUD TO GET INTO BED AFTER SULIVERES Vv. COMMONWEALTH—A CALL FOR LEGISLATIVE REFORM Jacqueline Syrnick* Abstract: In the middle of the night, a man entered Sara's bedroom, which she shared with her longtime boyfriend, and woke her, The man had sexual intercourse with Sara by impersonating her boyfriend—his brother. Ultimately, no criminal ibility was imposed. Sadly, a survey of American case law indicates that the use of fraud or coercion to obtain consent for sexual intercourse is “not a recent or rare phenomenon.” Suliveres v. Commonwealth is just another example in a long line of cases. where perpetrators are not successfully prosecuted under & state’s applicable rape statute. In these cases, the courts held that obtaining consent to sexual intercourse by fraud did not satisfy the requirements to establish criminal liability for rape. This Comment explores how the 2007 decision by the Supreme Judicial Court of Massachusetts in Suliveres v. Commonwealth reaffirmed a precedent ftom almost fifty years ago, holding that obtaining consent to sex by fraud does not constitute rape. Despite criticism of the case's outcome, this Comment argues that the Suliveres decision is an appropriate interpretation of the Massachusetts rape statute and an accurate application of judicial precedent. This decision is consistent with the opinions in a majority of jurisdictions and is respectful of the balance of power between the judiciary and legislature. Advocating for change, this Comment argues that legislative reform is necessary 10 extend rape law 10 cases where consent to sexual intercourse is obtained by fraud. This Comment proposes a statutory amendment to expand the definition of rape in * Candidate for Juris Doctor, New England School of Law (2009). B.A, Politieal Science; Minors, French and Women’s Studies, Pennsylvania State University (2005). Prior to law school, Jacqueline taught conversational English in Bergerac, France. I would like to thank ‘my mom and dad for being my biggest fans. 321322 NEW ENGLAND LAW REVIEW [Vol. 43:321 the Commonwealth to include sexual intercourse accomplished by fraud in order to afford protection to vietims of rape by deceit, trickery, and misrepresentation, INTRODUCTION ln May 2001, Maxim, a popular men's magazine, published the article Fake Your Way Into Her Bed. The article suggests that men “[flake an {ilnjury,” “[glenerate a [g]ood [bJuz2" or “[c}oncoct a [connection” to “cut a few comers in the race to [a woman's] bed.”? These “{l]ittle white lies’ are deemed not only harmless, but effective; and testimony of women successfully tricked is included to further persuade the reader to use these tactics.’ Alarmingly, the lies told to coerce a woman into sexual intercourse are not limited to this Maxim article.’ A survey of American case law indicates that the use of fraud or coercion to obtain consent for sexual intercourse is “not a recent or rare phenomenon.”® For example, in an early Michigan case from 1872, the defendant, claiming to be a doctor who treats diseases, told fifteen-year-old Freda’ that he needed to have sexual intercourse with her in order to save her life.’ Upon her objection, the defendant told Freda that her father was aware of the procedure and had authorized it.’ Believing the doctor, Freda consented.” In a related 1958 case from Massachusetts, a physiotherapist fraudulently obtained consent to engage in sexual intercourse with Rebecca, a nineteen-year-old pregnant woman.'° The defendant told Rebecca that ‘“he had to have intercourse” with her because it ““would help in some way” with the procurement of an abortion.'" More recently, in a 1994 case from New York, a man had sexual intercourse with his twin brother's girlfriend by leading her to believe he was his brother." Finally, 1. Lisa Lombardi, Fake Your Way Into Her Bed, Maxi, May 2001, at 74 2 ld at 74, 16, 78. 3. See id at 74 4. See Patricia J. Falk, Rape by Fraud and Rape by Coercion, 64 BROOK. L. REV. 39, 50 (1998). 5d 6. Vietims’ names have been changed to respect their anonymity 7. Don Moran v. People, 25 Mich. 356, 357 (1872). The defendant told Freda that her ‘only other option was an operation which would probably kil her. fd 8 1d. at 357-58, 9. Id at 358. 10. Commonwealth v. Goldenberg, 155 N.E.2d 187, 189-90 (Mass. 1959). 1. J, at 190 (quoting the record). 12, People v. Hough, 607 N.Y.S.24 884, 885 (N.Y. Dist. Ct. 1994,2009] OBTAINING CONSENT BY FRAUD 323 in a strikingly similar case before the Supreme Judicial Court of Massachusetts (“SIC”) in 2007, a man had sex with a woman named Sara by impersonating her longtime boyfriend, also his brother."” In all the foregoing examples, the perpetrators were not successfully prosecuted under the applicable state’s rape statute because the courts held that obtaining consent to sexual intercourse by fraud does not establish criminal liability for rape.'* Legislative reform is necessary to protect against this reprehensible conduct by amending the Massachusetts rape statute to encompass ‘obtaining consent to sexual intercourse by fraud.'® This Comment explores, how the 2007 decision by the SJC in Suliveres v. Commonwealth'® reaffirmed a precedent from almost fifty years ago holding that rape is not ‘committed when consent to sexual intercourse is fraudulently obtained.” Part I provides an overview of Massachusetts rape law'* and corresponding. case law. Part II provides a detailed look at the SJC’s decision in Suliveres v. Commonwealth, Part III analyzes the court’s decision with respect to this Jaw and compares the Suliveres outcome with other jurisdictions. Part IV advocates for legislative changes in the Commonwealth whereby obtaining, consent to sexual intercourse by fraud would constitute rape. BACKGROUND. 1. Massachusetts Rape Law and Relevant Case Law ‘The SIC has already explored the application of the Massachusetts rape statute in depth, prior to the Suliveres decision.'? More specifically, the issue of whether fraudulently obtaining consent for sexual intercourse constitutes rape was first addressed in Massachusetts in 1959, laying the groundwork for the Suliveres decision.” 13, Suliveres v. Commonwealth, 865 N.E.2d 1086, 1088 (Mass. 2007) 14, See id. at 1091; Goldenberg, 155 N-E.24 at 191; Don Moran v. People, 25 Mich 356, 364-65 (1872) (holding that the element of force was not satisfied); Hough, 607 N.Y.S.2d at 887. 15, See infra Pan IV. 16, 865 N.E.24 1086, 17. Id at 1088 (ceaffirming Goldenberg, 155 N-E.24 187) 18, MASS. GEN, LAWS ch, 265, § 22(b) (2006), 19. See infra Past 20. See Commonwealth v. Goldenberg, 155 N.E.2d 187, 191 (Mass. 1959) infra Past324 NEW ENGLAND LAW REVIEW {Vol. 43:321 A. Massachusetts General Law Chapter 265, Section 22(b) Criminalizes Rape In the Commonwealth of Massachusetts, rape is criminalized under General Laws Chapter 265, section 22(b), which was enacted based on the common law definition of rape.” Section 22(b) prohibits “sexual intercourse or unnatural sexual intercourse with a person and compel(ling} such person to submit by force and against his will, or compel[ling] such person to submit by threat of bodily injury.””? Rules of statutory construction require that “[n]o portion of the statutory language may be deemed superfluous” in the court's interpretation.” Therefore, the section 22(b) requirements “by force and against his will” are understood as two distinct elements independent of one another. In order to satisfy these separate requirements for a conviction of rape, the Commonwealth must show beyond a reasonable doubt that “the defendant committed sexual intercourse (1) by means of physical force, nonphysical, constructive force, or threats of bodily harm, either explicit or implicit, and (2) at the time of penetration, there was no consent,””* This interpretation of section 22(b) has significant implications for cases where fraud is used to obtain consent to sexual intercourse.” B. Commonwealth v. Goldenberg: A Case of First Impression Interpreting Section 22(b) in the Context of Consent Obtained by Fraud In 1959, the SIC, in a case of first impression, decided whether rape is committed when consent is obtained by fraud.” Rebecca, a nineteen-year- old pregnant woman, sought an abortion.” Accompanied by her mother 21, See Mass, GEN. Laws ch, 265, §22(b) (2006). 22. Id 23, Commonwealth v. Caracciols, S69 N.E.2d 774, 778 (Mass. 1991) (quoting Commonsveath v. Gove, 320 N.E.2d 900, 903 (Mass. 1974)). 24, MASS. GEN. LAWS ch, 265, § 22(0. 25, Commonwealth v. Lopez, 745 N.F.2d 961, 965 (Mass. 2001) 26. Id (citations omitted), 27. See, eg., Suliveres v. Commonwealth, 865 NE2d 1086, 1091 (Mass. 2007); Commonwealth v. Goldenberg, 155 N.E2d 187, 191 (Mass. 1959). Declining to read “force” out of section 22(6), te SIC in both Suliveres and Goldenberg held that the use of fraud to obtain consent to sexual intercourse does not constitute rape because the requirement of force isnot satisfied, Suliveres, 865 N.E.24 at 1091; Goldenberg, 155 N.E.2d at 91 28, Goldenberg, 155 N.E.24 at 191 29, Id. 189, Prior tothe United States Supreme Cours 1973 decision in Roe v. Wade, abortion was illegal in Massachuserts, See Mass. GEN. Laws ch. 272, § 19 (2006),2009) OBTAINING CONSENT BY FRAUD 325 and a friend of her mother, Rebecca visited the defendant’s home office to obtain an abortion.” The defendant, a physiotherapist who was referred to the family, told Rebecca that the procedure would consist of three treatments." During her second visit, the defendant told Rebecca that “he had to have intercourse” with her, explaining that it “would help in some way.” Rebecca did not object when the defendant said he did the same with other women for similar reasons.” The defendant then had intercourse with her.* ‘After several days, Rebecca told a friend and later her mother what happened.”® The Massachusetts State Police were then notified and charged Goldenberg with raping Rebecca.”* A jury found him guilty of rape, which he appealed with exceptions.” The SIC set aside the verdict and sustained the defendant's exceptions fon the grounds that the evidence was insufficient to prove rape was ‘committed.”* Based on the facts of the case and Rebecca’s testimony, the court could not conclude that sexual intercourse occurred without Rebecca’s consent, nor hold that the requirement of “force” had been satisfied.” Shifting its analysis, the SJC addressed for the first time “[w]hether rape is committed where consent of the woman is obtained by fraud...’ The court disregarded dicta from two previous SJC cases, which suggested that fraud may constitute force or serve as a substitute for the force requirement.*' In Goldenberg, the SIC held that fraudulently invalidated by Roe v. Wade, 410 US. 113 (1973). 30. Goldenberg, 155 N.E.24 at 189, 3 id. 32. Id. at 190, 33 id. 34 Id. 35, Ld at 190, 36, Goldenberg, 15S N.E.2d at 189, Defendant was also charged with an unlawful aempt to procure an abortion and the commission of adultery with her. 37. Id at 189, During tral, Goldenberg moved fora directed verdict of not guilty, which was denied, Id. at 190, 38. 1d. 191 39. Id. The court found that the evidence indicated that no force was used, stating “[there was ‘no act of violence, no struggle, no outcry, and no attempt to restrain or confine the person which construe the usual and essential evidence” of rape.” /d. The court further distinguished this case from ones “where a woman is incapable of consent by reason of stupefaction, unconsciousness or helplessness, and the amount of force required to commit the crime may be only that suficient to effect the intercourse.” Id 40. Id. 41, See id; Commonwealth v. Roosnell, 8 NE. 747, 751 (Mass. 1886) (stating “sometimes even where the consent af one capable of consenting is procured by fraud, he326 NEW ENGLAND LAW REVIEW [Vol. 43:321 obtaining consent to sexual intercourse does not constitute rape, stating that “[fJraud cannot be allowed to supply the place of the force which the statute makes mandatory.” IL, Suliveres v. Commonwealth When Suliveres v. Commonwealth came before the SIC in 2007, the court once again explored the issue of whether fraudulently obtained consent for sexual intercourse constitutes rape.“ Here, the Commonwealth challenged the Goldenberg decision and requested that the SIC overrule iu A. Facts and Procedural History While sleeping in the bedroom which she shared with her boyfriend, Sara awoke to a man entering the room. She assumed he was her boyfriend and addressed him as such.“° However, the man who entered the room was the defendant, the brother of Sara's boyfriend.”’ Pretending to be his brother, the defendant entered the bed and had sexual intercourse with Sara. Throughout the act, Sara believed the defendant was her boyfriend.” She stated that she “would have never consented” to sexual intercourse if she knew it was the defendant and not her boyfriend.”° Indicted for rape, the defendant was tried before a jury in Superior Court." He claimed that the intercourse was consensual, pointing to Sara’s testimony that she consented under the mistaken belief that she was having intercourse with her boyfriend.” In response, the Commonwealth argued that the defendant fraudulently obtained Sara’s consent to intercourse by may be convicted of rape”); Commonwealth v. Stratton, [14 Mass. 303, 305 (1873) (stating “ifhe deceit... was a fraud upon her wil, equivalent to force in overpowering it). 42. Goldenberg, 155 N.E2d at 192. The SIC also pointed to and granted substantial weight to Don Moran ». People where a conviction of rape was ceversed in a stikingly similar ease because the requisite force was not present. Id. at 191; see infra Parts IILA-B, r Suliveres v. Commonwtealth, 865 N.E.2d 1086, 1087 (Mass. 2007), ia ‘See id at 1088, i. ‘See id i Suliveres, 865 N.E.24 at 1088, ia Si. Id 32. ld2009) OBTAINING CONSENT BY FRAUD 327 pretending to be her boyfriend.” During the trial, Suliveres filed a motion for a required finding of not guilty, which was denied.” After deliberation, the jury could not reach a verdict and the judge declared a mistrial® The defendant then filed a motion to dismiss the indictment because of insufficient evidence to support a guilty verdict and double jeopardy.** The defendant's motion to dismiss was denied.*” He appealed, seeking relief from the SJC.* B. The Supreme Judicial Court’s Decision ‘On appeal, the Commonwealth requested that the SIC overrule Goldenberg, arguing that the court should omit the phrase “force” from the statute when reviewing cases where the defendant misrepresented his identity. The court, defining rape as “nonconsensual intercourse achieved ‘by force,” rejected the Commonwealth’s argument.” The court stated that under the rules of statutory interpretation, it was “not free, any more than [it was] in the Goldenberg case, to adopt the Commonwealth’s proposed interpretation.”*" The Suliveres court relied on Commonwealth v. Lopez and. Commonwealth v. Caracciola for the proposition that under section 22(b) lack of consent and use of force are two distinct and independent elements.” The court reaffirmed that both elements must be satisfied to support a conviction of rape.,? For these reasons the court refused to omit the force requirement, stating “the Commonwealth asks us to read ‘force’ out of the statute in cases involving misrepresentation as to identity. Yet we have never suggested that force is not an element of the crime, or that ‘by force’ is synonymous with lack of consent." In its analysis, the court directly addressed the statutory changes made to section 22(b) since Goldenberg was decided forty-nine years earlier, During the time of the Goldenberg decision and until 1974, the statute 5h. 54, Id. 55, Sulveres, 865 N.E.2d at 1088. 56. Id 37 Id 38 Id 39. Id. 60, Sve id 61, Sulveres, 865 N.E.2d at 1089, 62, See id; Commonwealth v. Lopez, 745 N.E24 961, 965 (Mass. 2001); Commonwealth v. Caraeciola, $69 N.E.24 774, 778 (Mass, 1991); supra Par L.A. 63, See Suliveres, 865 N.E.24 at 1089, 64. Id. 65, See id. at 1090328 NEW ENGLAND LAW REVIEW [Vol. 43:321 stated “[wJhoever ravishes and camally knows a female by force and ‘against her will shall be punished by imprisonment in the state prison for life or for any term of years.” This previous version of the statute codified the identical language of “by force and against [her] will” found in the current version of section 22(b).” According to the Suliveres court, “when it enacts legislation, the Legislature is not only aware of existing statutes, but is also aware of the prior state of the law as explicated by the decisions of this court.”** The court pointed out that the Legislature has the ability to amend the statute in question and can even create a new offense within which fraudulently obtaining consent for sexual intercourse would fit.” The court, therefore, found the Legislature's failure to amend the statute significant.” The court pointed out that the Legislature did not overrule Goldenberg despite three amendments to the statute,” judicial criticism of the Goldenberg decision,”* and the changes in scholarship and attitudes towards rape.” Deferring to the Legislature, the Suliveres court adopted a strict construction of section 22(b) and exercised judicial restraint, stating that ““[i]t is not for this court... . to rewrite the clear intention expressed by the statute.””"* The SIC reaffirmed the holding in Goldenberg, finding that “[fJraudulently obtaining consent to sexual intercourse does not constitute rape as defined in our statute.””* In doing so the court also held that the (66. MASS. GEN. Laws ch. 265, § 22(b) (1973) (amended 1974) (emphasis added), 67. Sce Mass. GEN. LAWs ch. 265, § 2206) (2006), (68, Suliveres, 865 N.E.24 at 1090, 69, See id 70, See id ‘11, See id. Other legislative changes, including one currently pending, simply address sentencing requirements. See, e.g, 1974 Mass. Acts 440 (stating that one should be “punished by imprisonment inthe state prisoa for life or for any term of years"); 1980 Mass. ‘Acts 604 (stating that one should be “punished by imprisonment ... for nat more than twenty years"); see also H.B. 1726, 185th Gen. Court, Reg. Sess. (Mass. 2007) (proposing to amend section 22(6) "by deleting, in line 31 and line 32, the words ‘or for any term of years, but not less than 15 years") (quoting MASS. GEN. Laws ch. 265, § 22 (2004)) 72. See Suliveres, 865 N.E.24 at 1090; see also Commonwealth v. Keevan, $1] NE2d 534, 543 (Mass. 1987) (Abrams, J, concurring) (stating “I again raise the question whether Commonwealth v. Goldenberg is still good law"). ‘TA, Suliveres, 865 N.E.2d at 1090; se infra Part IV.A. 74, Suliveres, 865 N.E.2d at 1090 (quoting Commonwealth v. Leno, 616 N.E.24 453 (Mass. 1993). 175, Id. at 1091. The court stated that the Goldenberg rule “is that intercourse where consent is achieved by fraud does not constitute rape. That rule compels the conclusion tht, there was no evidence of rape in this case, and we decline to overrule the Goldenberg decision.” J. at 1089,2009) OBTAINING CONSENT BY FRAUD 329 present case involved fraud in the inducement,” like in Goldenberg.” The court emphasized that the Commonwealth argued Sara’s consent was obtained by misrepresentation about the surrounding circumstances as ‘opposed to the “essential nature” of the act and therefore liability could not be established.”* Consequently, the court stated that the Superior Court should have granted defendant’s motion for a required finding of not guilty.” The SIC then remanded the case to county court for entry of an appropriate order prohibiting a subsequent retrial to avoid double jeopardy. ° A lesser convietion was not available since the Commonwealth had waived the ‘arguments for lesser convictions, such as assault or battery." Therefore, the defendant walked away, free from criminal liability.” ANALYSIS. IIL, The “Right” Decision Despite criticism of the case’s outcome," the Suliveres decision is an 176. A distinction is made in criminal law between fraud in the factum and fraud in the inducement to determine what types of fraud vitiate consent, See Russell L. Christopher & Katheyn H. Christopher, Adult Impersonation: Rape by Fraud as a Defense t0 Statutory Rape, 101 Nw. U. L, REV. 75, 83-84 (2007) (“If, as a result of the fraud, the victim is ‘unaware of engaging in sexual intercourse, the fraud is classified as fraud in the fectum. If the victim is aware of engaging in sexual intercourse, but has been induced to do so for a fraudulent reason, the fraud is classified as fraud in the inducement”) (footnote omitted); see also Martha Challis, Consent, Equality, and the Legal Control of Sexual Conduct, 61 S.CAL.L, REV, 777, 831 n.224 (1988) (“Fraud in the factum typically denotes a situation in ‘hich the vietim consents to the doing of act X and the perpetrator ofthe fraud, inthe guise of doing act X, actully does act Y. . . . which is} distinguished from fraud in the inducement, whereby the victim is fraudulently induced to consent to the doing of act X and the perpetrator ofthe fraud does indeed commit at X.”) 11, See Suliveres, 865 N.E.24 at 1090-91 78. Id. Traditionally, only fraud in the factum establishes lability for rape because cours typically hold that intercourse by fraud in the factum vitiates consent. See Christopher & Christopher, supra note 76, at 84 79, See Sulveres, 865 N.E.2d at 1091 80, Jd. BI, Id. at 1091 0.10, 82, See id at 1091. 83, See Jonathan Saltzman, Court Rules Sex Through Use of Fraud is Not Rape, Boston GLoBe, May 11, 2007, at B2, available at 2007 WLNR 9166954 (quoting Wendy J. Murphy, an Adjunct Professor at New England School of Law and advocate for victims, Who criticized the cour’s decision as “regressive"). Murphy stated thatthe Suliveres court sends the message that "a man’s ability o obtain sex through fraud with regard to who he is {is more important than a woman's fundamental right to control her own body.” Id. She330 NEW ENGLAND LAW REVIEW [Vol. 43:321 appropriate interpretation of section 22(b) and an accurate application of judicial precedent in that it adheres to the Goldenberg rule.* Further, the court's distinction between force and fraud is consistent with opinions in a majority of jurisdictions."* Additionally, by pointing to the role of the legislature in the case, the SIC acknowledges and respects the balance of power between the judiciary and legislature.** To the extent that the SJC made the “right” decision in Suliveres, legislative changes are necessary to extend rape law to cases where consent to sexual intercourse is obtained by fraud.” A, Similar Outcomes in Other Jurisdictions ‘The SIC does not stand alone on this issue, but is in good company among other jurisdictions that have similarly held that fraudulently ‘obtaining consent for sexual intercourse does not constitute rape." In its analysis, the Suliveres court recognized that the precedent set in Goldenberg is consistent with the majority of holdings in other jurisdictions.” ‘The Goldenberg court relied on an 1872 Michigan case with a similar fact pattern, Don Moran v. People, which reversed a conviction of rape where the defendant obtained consent for sexual intercourse by convincing his fifteen-year-old patient that he needed to have intercourse with her to save her life.’ The Supreme Court of Michigan reversed the judgment because the required force was lacking.” The Don Moran court reasoned that “the idea of force can not thus be left out and ignored, nor can such fraud be allowed to supply its place..." Ina case strikingly similar to Suliveres where the defendant had sexual intercourse with his twin brother's girlfriend by impersonating his brother, a New York district court dismissed charges of sexual further argued that “{itis impossible - as a matter of fact and law - to consent to sex with ‘the wrong person.” Jd 84, See Suliveres, 865 N.E.24 at 1089; infra Part IIB. 85. Seo Sulivres, 865 N.E.2d at 1089 n.7; Commonwealth v. Goldenberg, 155 N.E.24 187, 191 (Mass, 1959); infra Part ILA 86. See Suliveres, 865 N.E2d at 1090; Shell Oil Co. v. City of Revere, 421 NE2d 1181, 1185 (Mass, 1981); bya Part LB, 87. See infra Part WV. 8, Sulveres, 865 N.E.2d at 1089 n.7. 89, See id. (“{MJost jurisdictions that have considered the issue have held that intercourse by fraud does not constitute rape.” 90, Don Moran v. People, 25 Mich. 356, 57 (1872). 91, Id at 364.65, 92. Id. a 364,2009) OBTAINING CONSENT BY FRAUD 331 misconduct.” For a conviction of sexual misconduct only lack of consent must be established; force is not required.” Nonetheless, the district court found that the defendant could not be found guilty of sexual misconduct where [t]he legislature defined lack of consent .. . and intended to exclude cases of fraud or impersonation.” In addition to these cases, other jurisdictions have similarly held that obtaining consent to intercourse by fraud does not satisfy the element of force and therefore does not constitute rape. B. Making Judicial Legislation Is Beyond the Court's Scope of ‘Authority The Suliveres court placed great emphasis on the fact that the Legislature chose not to amend section 22(b) in the almost fifty years after the Goldenberg decision.” Since the Legislature had not amended section 22(b), the court recognized that “{iJt is not for this court... to rewrite the clear intention expressed by the statute.””* Recognizing its role in statutory interpretation, the court refrained from judicially legislating.” Such 98. See People v. Hough, 607 N.Y S.2d 884, 885, 887 (N.Y. Dist. Ct. 1994). 94, See id. at 884. The applicable par of the statute at the time defined sexual risconduct as “engag[ing] in sexual intercourse with a female without her conseet.” Id 95, 1d. at 887 eg, Lewis v. State, 30 Ala, $4, $6 (1857) "[FJorce is a necessary ingredient in the crime of ape... (A]lthough that consent was procured by fraudulent personation of the female's husband, there is neither actual nor constructive force, and such act does not ‘amount to the crime of rape."); State v. Brooks, 76 N.C. 1, 4 (1877) (*[W]hen consent is ‘obtained by fraud, the act done does not amount to rape."); Commonsseath v. Culbreath, 36 Va. Cir. 188, 189 (Va. Cir. Ct 1995) (stating that since the rape statute prevents the courts from providing protection against the behavior at issue [where consent to sexual intercourse ‘was obtained by fraud, perhaps the legislature will address the problem”). Bur see Pinson ¥. State, 18 So, 24 1220, 1224 (Mis. 1988) (upholding a conviction of rape and finding the defendant's argument unsupported and without merit because “{iJhe suggestion that [the victim] responded to [defendam's} actions while believing him to be her husband and because penetration occurred before she realized the man in her bed was not her husband ‘makes the act something less than rape is ludicrous”) 97. Suliveres v. Commonwealth, 865 N.E.2d 1086, 1087 (Mass, 2007) ("Because the Goldenberg case has been the law for neatly one-half century, during which the Legislature hhas had ample opportunity to change the rape statute and has not done so, we decline to ‘overrule our decision in Goldenberg") 98. Id. at 1090 (quoting Commonwealth v. Leno, 616 NE.2d 453, 457 (Mass. 1993) (omission in original); sce also Don Moran v. People, 25 Mich. 356, 365 (1872) (Ut isnot for the judiciary to legislate, by straining the existing criminal law to bring such cases within iv’. 99, See Leno, 616 N.E.2d at 457 (citing Commonwealth v. Lammi, 435 N.E.2d 360 (Mass, 1982)) It is beyond the court's authority to rewrite a statute or judge the wisdom of332 NEW ENGLAND LAW REVIEW [Vol. 43:321 deference has been explained by the SIC as “neither an abdication of nor unwillingness to perform the judicial role; but rather recognition of the separation of powers and the ‘undesirability of the judiciary substituting its notions of correct policy for that of a popularly elected Legislature.” Suliveres is just another example of the SJC’s tradition of protecting this separation of powers.'" In this respect, the SIC properly interpreted section 22(b) as containing two distinct elements: lack of consent and force.'” Recognizing that the statute specifically requires the use of force, independent of lack of consent, the court was barred from ignoring the requisite element of force or attempting to substitute fraud for force." In essence, the Suliveres court's hands were tied, limiting its interpretation of this statute.'™ The text of section 22(b) and its construction is such that the outcome in Suliveres was inevitable. legislation. See td. (citing Mellor v, Berman, 454 N.E.24 907 (Mass. 1983)) 100. Shell Oil Co. v.City of Revere, 421 N.E.2d 1181, 1185 (Mass. 1981) (quoting Zayre Corp. v. Attorney Gen., 362 N.E.2d 878, 884 (Mass. 1977) 11, See MASS. Const. pt. 1, art. XXX (*{T]he judicial shall never exercise the legislative and executive powers, or either of them . ..."); Suliveres, 1086 N.E.2d at 1090 (citing Leno, 616 N.E.24 453); Lynn D. Wardle, Goodridge and "The Justiciary” of ‘Massachusets, 14 B.U. Pun. INT. LJ. 57, 68-79 (2004) (exploring the “Rich Separation-of- Powers Legacy” in Massachusetts); see’ also Pielech v. Massasoit Greyhound, Inc., 668 N.E24 1298, 1302 (Mass, 1996). The Piefech court noted We have traditionally and consistently declined to trespass on legislative territory in deference to the time tested wisdom of the separation of powers as expressed in art, XXX of the Declaration of Rights of the Constitution of Massachusetts even when it appeared that highly desirable and just result might thus be achieved. Pielech, 668 N.E.2d at 1302 (citing King v. Viscoloid Co., 106 N.E. 988, 989 (Mass. 1914). 102. See Suliveres, 865 N.E.2d at 1089; Commonwealth v. Lope2, 745 N.E.24 961, 965 (Mass. 2001) 103. See Suliveres, 865 N.E24 at 1089; Lopez, 745 N.E.2d at 965. The scope of the juiciary’s power is limited 10 the interpretation and application of the intent of the Legislature, See Pielech, 668 N.E.2d at 1302. The court has “a duty ‘to avoid judicial legislation in the guise of new constructions to meet real or supposed new popular viewpoints, preserving always to the Legislature alone its proper prerogative of adjusting the statutes to changed conditions." Commonwealth v. A Juvenile, 334 N.E.2d 617, 627, (Mass. 1975) (quoting Commonwealth v,Isenstadt, 62 N.E.2d 840, 843 (Mass. 1945). 104. See Suliveres, 865 N.E.2d at 1089 (stating “we are not fee, any more than we were in the Goldenberg case, to adopt the Commonwealth's proposed interpretation” and read “force” out ofthe statue) 105, See i. at 1080,2009] OBTAINING CONSENT BY FRAUD 333 IV. A Call for Legislative Reform Legislative reform is necessary to extend section 22(b) to cases where consent is obtained by fraud in order to afford protection to victims of rape by fraud. Acknowledging that any other interpretation of the statute is beyond the role of the judiciary, the Suliveres court signaled for the Massachusetts Legislature to take action.” The court encouraged the Legislature, stating “[t]he Legislature is free to amend the rape statute or create a new substantive offense to encompass the conduct at issue, as many other States have done.’”"* Incidentally, the same court which shaped the SJC’s decision in Goldenberg made a similar plea to the Michigan Legislature stating IA} sexual connection obtained by falsely and fraudulently personating the husband of a woman, or by a physician fraudulently inducing a female patient to believe such connection essential to @ course of medical treatment, must be considered nearly, ifnot quite, as criminal and prejudicial to society as when obtained by force or any apprehension of violence; and it might, and in my opinion would, be judicious for the legislature to make some provision for punishment in cases of this kind. But itis not for the judiciary to legislate, by straining the existing criminal law to bring such cases within it. Accordingly, the language of the Massachusetts rape statute, section 22(b) must be amended to prohibit obtaining consent to sexual intercourse by fraud.” ‘A. Rape Law Should be Extended to Include Fraudulently ‘Obtaining Consent for Sexual Intercourse The lack of statutory remedies should not excuse the calculated misrepresentation involved in fraudulently obtaining consent to sex, which is just as reprehensible as the forcible rape of a woman without her consent.''' Fortunately, modern views towards rape allow rape laws to include such behavior." While rape is traditionally viewed as a crime of 106, See id 107. See id. The Suliveres court refrained from “rewriting] the clear intention expressed by the statute" fd tos. fd 109. Don Moran v. People, 25 Mich. 356, 365 (1872) 110. See injta Part IV.C. 111, See Don Moran, 25 Mich, at 365; see also Falk, supra note 4, at 44 (suggesting that such behavior is 28 “blameworthy and appropriately condemnable as rape"), 112 See Christopher & Christopher, supra note 76, a 88334 NEW ENGLAND LAW REVIEW [Vol. 43:321 violence, it can also be considered a sexual offense because the victim's sexual integrity has been violated.'"” In this respect, legislative reform is crucial to closing the loopholes found in Goldenberg and Suliveres,!"* as well as protecting both the physical and sexual autonomy of victims.''* Viewing rape as a violation of one’s sexual integrity instead of simply @ crime of violence has caused a shift in analysis'"® whereby the element of consent, as opposed to the element of force, becomes the focus of rape ea In addition, commentators advocate for the extension of rape laws to ‘encompass fraudulently obtaining consent for sex.''® A compelling argument has been made to apply the extortion standard of fraud to rape to protect against the use of fraud to obtain consent.'’? Susan Estrich suggests legislation to “prohibit fraud to secure sex to the same extent we prohibit fraud to secure money, and prohibit extortion to secure sex to the same ‘extent we prohibit extortion to secure money.”"’ Despite being somewhat flawed because the “loss of bodily integrity is a different and greater injury than loss of money and thus merits greater punishment,” this framework still stresses the need to expand rape law. '”” Commentators also argue that 113. See Falk, supra note 4, at 141 116, See Suliveres v. Commonwealth, 865 N.E24 1086, 1090-91 (Mass. 2007); ‘Commonvvealth v. Goldenberg, 155 N.E.2d 187, 191-92 (Mass. 1959), 113, See Susan Estrich, Rape, 95 YALE LJ. 1087, 1108 (1986) (“A second understanding of force, not acknowledged in the law of rape, recognizes that bodily integrity means more than freedom fom the force of fists, that power ean be exercised without Violence, and that coercion isnot limited to what boys doin schoolyards."); Falk, supra note 4, at 141. 116. See Christopher & Christopher, supra note 76, at 88; see also Lucy Reed Harris, Towards a Consent Standard in the Law of Rape, 43 U. Ci, L. REV. 613, 644 (1976) (*CTIhe rote of fraud in rape law demonstrates that fieedom of sexual choice rather than physical protection isthe primary value served by eriminalization of rape.") 117, See SUSAN EstRICH, REAL Rave 29 (Harvard Univ. Press 1987) (*{NJonconsent has Jong been viewed asthe Key element in the definition of rape."); Christopher & Christopher, supra note 76, a 8. 118. See STEPHEN J. SCHULHOFER, UNWANTED SEX: THE CULTURE OF INTIMIDATION AND ‘THE FAILURE OF Law 158-59 (1998) (suggesting that certain types of fraud and misrepresentation which are typically not regulated because they are fraud by the inducement should constitute rape); Christopher & Christopher, supra note 76, at 88; of JOSHUA DRESSLER, UNDERSTANDING CrIMnIAL. LAW 636, 638 (Ath ed. 2006) (“Seemingly, it should constitute rape fo impersonate anyone with whom the vitim has been consensually sexually intimate”), 119. See Estich, supra note 115, at 1120 (pointing out that “[llying to secure money is unlawful theft by deception or false pretenses .... Yet lying to secure sex is old-fashioned seduction—not first-degree rape, not even third-degree rape.”) 120. 1d (deseribing this a5 “something that i actually quite easy”), 121. Jd at 1121 (stating that “[e}riminal coercion statues ae, at best, poor substitutes for2009) OBTAINING CONSENT BY FRAUD 335 the distinction between fraud in the factum and fraud in the inducement is “increasingly viewed as arbitrary and its influence is waning”™? and “objectionable on several grounds.” This further supports the encompassment of fraudulently obtained consent within rape law without limitations." B. States Responding to the Courts’ Cries for Legislative Changes ‘The petition for legislative change is a trend among those courts holding that obtaining consent for sexual intercourse by fraud does not constitute rape." Some state legislatures have responded to courts’ pleas, recognizing the need to amend their rape statute in response to cases like Goldenberg and Suliveres."* California and Kansas have responded to the lack of statutory remedies in cases where consent to sexual intercourse is obtained by fraud.""" California created a new offense whereby consent procured by false or fraudulent representation with intent to create fear is prohibited." an expanded understanding of the “force? that makes sex rape”); see Christopher & Ciristopher, supra note 76, at 88-89. 122. See Christopher & Christopher, supra note 76, at 88-89, 123, Falk, supra note 4, at 159 (rejecting the factum-inducementdistinetion because its origins ate “dubious,” the distinction offers “litle real assistance in differentiating between legally effective and ineffective consent” and “fails to accurately distinguish degrees of volustariness"), 126, See id. at 159-61 125. See Suliveres v. Commonwealth, 865 N.E.2d 1086, 1089 (Mass. 2007); Don Moran +. People, 25 Mich, 356 (1872); Commonwealth v, Culbreath, 36 Va. Cir. 188, 189 (Va. Cit Cx, 1995) (*TPlethaps the legislature will address the problem [of fraudulently obtaining ‘consent for sexual intercourse”) 126. See Falk, supra note 4, at 108 (“[I}n response to egregious acts by putative rapists and the lack of available statutory remedies, California and Kansas recently enacted provisions carving out certain cieumstances in which a specific type of fraud will render @ defendant criminally responsible for rape.”); Suliveres, 865 N.E2d at 1089; Goldenberg, 155 NiE-2¢ 187, 192 (Mass. 1959), 127, Felk, supra note 4, at 108. 128. CaL. PENAL Cope § 266e (West 2007) Every person who induces any other person to engage in sexual intercourse, sexual penetration, oral copulation, or sodomy when his ot her consent is procured by false or fraudulent representation or pretense that is made with the intent to create fear, and which does induce fear, and that would cause a reasonable person in lke circumstances to act ‘contrary to the person's free wil, and does cause the victim to so act, is punishable336 NEW ENGLAND LAW REVIEW (Vol. 43:321 This amendment is appropriate in that it extends liability to some cases where consent is obtained by fraud, but it is insufficient because fraud alone does not trigger liability." Under this amendment, the use of fraud ‘must induce fear, thus limiting the statute’s application.'*° Meanwhile, the Kansas legislature amended its rape statute to include two specific categories of rape by fraud where consent is obtained through “knowing misrepresentation.”""' However, these two categories are limited to knowing misrepresentation in the context of medical or therapeutic procedures and abuse of authority. Without reaching other uses of fraud such as impersonation," the Kansas statute is also incomplete." ‘While a step in the right direction, the statutory amendments made in California and Kansas should be considered the beginning of the amendment process instead of the end.'” Their legislative reforms are useful to the extent that they extend liability to some cases where consent is fraudulently obtained; however, they are at best limited and “piecemeal solutions to a more global problem.”'** Furthermore, the outcome of the Suliveres case would not have changed if either the California or Kansas statute were applied, indicating the loopholes in rape statutes have yet to be closed in California and Kansas,'”” i 129, See id 130, See id Fear is defined as “the fear of physical injury or death tothe person or to any relative of the person or member of the person's family.” ld 131, See KAN. STAT. ANN, § 21-3502 (2007). Included within the definition of rape is sexual intercourse with a victim when the vitim’s consent was obtained ‘through a knowing mistepresentation made by the offender that the sexual intercourse was a medically or therapeutically necess procedure” and “sexual intercourse with a victim when the victim's ‘consent was obtained through a knowing misrepresentation made by the offender that the sexual intercourse was a legally required procedure within the scope of the offender's authority. i, 132. See Falk, supra note 4, at 170. 133. See generally Suliveres v. Commonwealth, 865 NE.2d 1086, 1091 (Mass. 2007); People v. Hough, 607 N.Y.S.24 884 (N.Y. Dist. CL. 1994), 134, See§ 21-3502; Fall, supra note 4, at 170. 13. See Falk, supra note 4, at 170, 136. See id 137. See Suliveres, 865 N.E.2d at 1091; Falk, supra note 4, at 170.2009) OBTAINING CONSENT BY FRAUD 337 C. Tennessee’s Rape Statute as a Model for the Revision of Section 22(b) ‘The Massachusetts Legislature could follow in the steps of California and Kansas to amend section 22(b)."* However, acknowledging the limitations of such narrow statutes,'”® Tennessee's rape statute provides a better model to follow.'” The Tennessee Legislature defines rape as the “unlawful sexual penetration of a victim by the defendant or of the defendant by a victim” if penetration is accompanied by any of the following circumstances (1) Force or coercion is used to accomplish the act; (2) The sexual penetration is accomplished without the consent of the vietim and the defendant knows or has reason to know at the time of the penetration that the victim did not consent; (@) The defendant knows or has reason to know that the victim is mentally defective, mentally incapacitated or physically helpless; (8) The sexual penetration is accomplished by fraud." “Fraud” is defined “as used in normal parlance and includes, but is not limited to, deceit, trickery, misrepresentation and subterfuge, and shall be broadly construed to accomplish the purposes of this title." Using Tennessee's statute as a model, section 22(b) of Massachusetts General Laws Chapter 265 should be amended to include the language of Tennessee Code Annotated Section 39-15-503(a)(4).'" This proposed amendment would define rape as: Whoever has sexual intercourse or unnatural sexual intercourse with a person by: (I) compelling such person to submit by force and against his will, or (2) compelling such person to submit by threat of bodily injury, or (3) accomplishing intercourse by fraud, shall be punished. .. 1 138. CAL. PENAL Cope § 261(2\4)(C)-(D) (2007); KAN. STAT. ANN. § 21-3502(8)(3) 2007). 139. See supra Part 1V.B. 140. See TENN. CODE ANN. § 3913-503 (2006). IAL. 1d. (emphasis added). 142. § 39-11-106(0\(13). 143. Mass. GEN. Laws ch. 265, § 22(b) (2006); TENN, CODE ANN. § 39-13-503 (2006). 144, Seech, 265, §22(b); § 39-13-503.338 NEW ENGLAND LAW REVIEW [Vol. 43:321 Tennessee's fraud provision would be an appropriate addition to section 22(b) because it broadly encompasses a variety of situations where consent is obtained by fraud,'** without narrowly limiting the scope of the legislation like California and Kansas have done.'** To ensure the benefit of this construction, the legislature should similarly adopt the broad definition of fraud used by the Tennessee statute, which encompasses “deceit, trickery, misrepresentation and subterfuge.”"*’ By enacting such an amendment, the Massachusetts Legislature will free the courts from the limitations of section 22(b) which have essentially kept the court’s hands tied, leading to undesirable outcomes such as Goldenberg and Suliveres.'* CONCLUSION Under the SIC’s decision in Suliveres, the defendant escaped punishment.’ Legislative changes are necessary to ensure that the outcome in Suliveres does not occur again.'*° Therefore, the Massachusetts” Legislature must amend the language of its rape statute to specifically prohibit sexual intercourse accomplished by fraud. If such legislative changes are not made to safeguard victims of rape, then Suliveres’ choice to impersonate his brother and use fraud to obtain consent to sexual intercourse may become just another success story for Maxim.'*! 145, See State v. Tizard, 897 S.W.24 732, 741-43 (Tenn. Crim. App. 1994) (stating that Tennessee's current rape statute “cure{d] the ills perceived in [prior cases where fraudulently obtaining consent for sexual intercourse did not constitute rape} by providing, fraud, inits broad meaning, as an alternative element to force... forthe purposes of rape") 146, See Falk, supra note 4, at 170, Compare TENN. CODE ANN. § 39-13-503 (2006), with (CAL, PENAL CODE § 266c (West 2007), and KAN. STAT. ANN. § 21-3502 (2007), 47, See TENN. CODE ANN, § 39-11-106(@)(13) 148, See Suliveres v. Commonwealth, 865 N-E24 1086, 1089 (Mass. 2007); see also supra Part1V. 149, Suliveres, 865 N.E.26 at 1091 130, See id. at 1050 131, See Lombardi, supra note 1