Constitutional Law, Courts, Criminal law, Free Speech, Politics, Society, Supreme Court

Rape By Fraud: New Jersey Legislator Seeks To Make It A Crime Pretend You Are “Someone [You] Are Not” To Have Sex With Another Person

singleton_colorAssemblyman Troy Singleton (D-Mount Laurel) has introduced a controversial measure that would change the law in New Jersey to criminalize lies used to get someone to have sex. While such lies are notorious but common elements in many pickup situations, Singleton calls such acts as “rape by fraud.”

We recently discussed the federal law, later struck down, to criminalize lies about military honors. At issue was the the Stolen Valor Act — legislation that I have previously criticized (here and here) as a threat to the first amendment. In United States v. Alvarez, No. 11-210, the Court held 6-3 that it is unconstitutional to criminalize lies. Justice Kennedy was joined by the Chief Justice, Justice Ginsburg, and Justice Sotomayor in holding that the Act violated protected speech. They were joined by by Justice Breyer and Justice Kagan concurring but arguing for an intermediate scrutiny standard. Here is the opinion: 11-210d4e9

Singleton seems to want to try to test that line again by moving from lies about military service to lies generally used to get someone to have sex — though the two are often both involved in the classic pickup line at a bar.

The bill (A3908) is poorly drafted and would likely fail on vagueness grounds before even addressing the free speech and association issues. The law covers “an act of sexual penetration to which a person has given consent because the actor has misrepresented the purpose of the act or has represented he is someone he is not.”

“[R]epresented he is someone he is not”? What on Earth does that mean? Singleton is equally opaque in defending the law by saying “You probably would not consent to someone who purported to be a million different things other than they are.” That would presumably include lying that you are single or separated from your spouse.

Tort law already creates a cause of action for lies that result in harm from sexual encounters, including a long list of STD cases. Moreover, there are a few states that have criminalized lies related to sex but not as a form of rape.

Under this law, the liar could be imprisoned for 10 to 20 years in prison.

I have long been a critic of the criminalization of America where millions of citizens are finding themselves labeled as felons for acts that used to be treated as strictly civil matters. The result is that everything is being translated into a criminal offense. This is a far more serious subject than some of the past targets of criminal laws (here or here). However, there remains the question of how we are changing our society by translating all misconduct into crimes rather than allow such cases to be handled in the civil liability system. Even if there is a need for such criminalization, this is not the bill. It is both ill-conceived and poorly drafted. It would be facially unconstitutional in my view in its current condition. The question is where to draw the line between the mildly deceitful on one hand and the criminal on the other. It would also vary widely on whether the other party believed the lie or whether a reasonable person would have discounted it. This law seems to criminalize the junction where the gullible meets the boastful. It would put juries and courts in the unenviable position of defining when a boast is a lie and when a lie was the determinative factor in two people having intimate relations.

Singleton holds a B.S. Rowan University in Business Administration and served previously as Assistant to the Executive Secretary-Treasurer of the Northeast Regional Council of Carpenters. He is the Vice Chair of the Committee on Tourism, Gaming and the Arts.

Source: CBS

67 thoughts on “Rape By Fraud: New Jersey Legislator Seeks To Make It A Crime Pretend You Are “Someone [You] Are Not” To Have Sex With Another Person”

  1. More regulation.
    HOW ABOUT A LAW AGAINST POLITIONS LYING TO GET VOTES.
    SO THEY CAN SCREW THE ENTIRE NATION !!!

    1. It would only be fair if it also criminalizes lipsticks, makeups, high heels, hair styling and dyeing, number of children, age and other misrepresentations.

    1. Andy Hoffman – it was reported today that 50% of women will not let their men see them without makeup until they have dated for at least a year.

  3. BTW..I am still lingering around here and elsewhere because I’m not going to dinner with my daughter until 7:00 PM this evening. Between the annual Detroit parade and the annual football game, downtown is a true test of your patience for traffic and parking for obscene amounts of money. I no longer have any. None.

    So we go to dinner in the mid-town area of the city in the evening…and I will have the usual. Turkey? No, Lasagna and a 5+ course meal at the best Eye-Talian place in town that has been here forever and a favorite of mine. One of the few places that has remained vibrant through all the downtown troubles…and treats every customer like they are royalty. I’ve never abandoned the downtown, my kid lives there now, and we enjoy the city, especially today.

  4. Bigfatmike … you mean we are all known” Grunty little malebeasts! ”

    Yep, I stand by my suggestion vis a vis the 5th Amendment. I may even “grunt” it. 🙂

    1. “More of you guys should be taking the 5th…just saying :-)”

      That does not help. It is like they have a built in lie detector. They just know.

    2. Aridog – you are going to have to speak for yourself when it comes to lying while dating. Although I might have intimated that I cooked, but cooking them dinner if the relationship had gone far enough. I only knew recipes for 20 or 10 not 2. There was only one recipe I knew for two, but I could pull it off under pressure. 🙂

  9. What a bunch of crap! Our Public Employees have nothing better to do than pass legislature on common sense. How about you make your bed, you have to lay in it? How about keep your pants up or cross your legs? I got a million more from past generations but the whole point is responsibility. How about legislation that means something like cleaning up the communication system ( back where “Genie” couldn’t show her belly button) ? Remove the un-necessary FOUL language, real film makers did not have to use foul language to get their story across. In fact, “Hollywood” needs a lot of policies passed to clean it up.

  10. Darren I agree. It seems to me that when legislators want to convince voters that they care about their constituents but don’t want to address the important issues and policies, they resort to finding ways to restrict free speech. This is not only trivial and stupid but also downright dangerous. As an aside, am I mistaken in thinking that “fraud” could cover some types of misrepresentation—misrepresentations that possibly negate consent—in a sexual situation?

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