It has come to my attention that New Jersey law Assemblyman Troy Singleton (D) has sponsored a bill which would make “sexual assault by fraud” a punishable offense.

Even our own DV Policy Advisor, Erin Pizzey, thinks that we should give this a thought:

But is it really a good idea?

Mind you, I’m not a citizen of New Jersey (or even an American) but given that such ideas are bounced around various legislatures around the world, this topic is bigger than New Jersey.

In the following lines, I’ll try to argue that such a law is a very bad idea. It should also be noted that just because I think the law is bad, that doesn’t mean I think the supporters of it are bad people. It just so happens though that the road to hell is paved with good intentions. Which is why the arguments against this idea shall be rooted in the premise that its supporters are well-intended.

Based on a dubious story

The bill comes following the story of one Mischele Lewis, a 37 year old single mom who dated a man who claimed to be a British secret agent.

You can read the entire story in the link above but, basically, the short story is that the man Mischele Lewis dated lied about pretty much everything – his job, his material possessions, his children (he claimed to have none whilst having a daughter) and his background. On top of that, he asked Ms. Lewis for $5000 for a “government clearance” – amount which Lewis provided and then the man disappeared.

Law enforcement agreed that this is a classical case of fraud and arrested the man who last November pleaded guilty for fraud and was ordered to pay restitution.

So, case closed? Well, no. The single mom went #fullMcIntosh and started campaigning to get a law passed so that the actions of people like her ex-boyfriend be considered “rape” because… you know… having your feelings hurt is worth more than a petty fraud charge.

In her own words where she defends her crusade to promote this law on another thread:

The psychological damage is akin to traumatic rape.

But is it really? Can Mischele Lewis genuinely claim with a straight face that she’s on a similar level with genuine victims of rape?

No one doubts that her case is on the extreme spectrum of fraud of this type, but akin to traumatic rape?

Also, call it victim blaming if you like, but if you give $5000 to someone you met online claiming to be a secret agent – you do have a responsibility in here. Her defense is that they were together for one year – but that’s a mitigating circumstance at best. When you get down to the brass tacks, any sane person would find it dubious (to say the least) when the partner asks out of the blue for a high amount of cash and for undisclosed reasons.

Call it heartless all you want – but making unsound economic decisions is a personal responsibility and it’s part of life. Also, owning your mistakes is part of life.

What’s morally wrong mustn’t sine qua non be illegal

Some would say that the reverse is also true, but that’s a discussion for another time. In defense of this new law, Ms. Lewis told the press that:

I think [the law is] important because trying to deceive anyone for the purpose of sexual gratification is just wrong

Very few people would disagree that trying to deceive anyone for the purpose of sexual gratification is morally wrong.

But when it comes to public policy (laws, decrees, etc.) a rigid line has to be drawn in such a manner so as to prevent lawlessness. Too much regulation promotes lawlessness (since nobody can keep up with all the laws) and too little regulation may lead to unnecessary harm – and eventually to lawlessness as well.

And therein lies the problem: There is no sensible way to regulate such interpersonal relationships without cloaking the legal system and promote lawlessness.

Ms. Lewis argues that the law would only apply for “egregious lies” because the victims like her “can’t ever come forward” as “[t]hey are so cloaked in shame and humiliation and as of right now, [have] no recourse to turn to”. But what constitutes an “egregious” lie?

Would a woman forgetting to tell her partner that one of her breasts is false fall under this law? Let’s say her breast falls on the floor (it can happen, by the way) – does that count as an egregious lie? What about a woman lying about being on birth control? What about a partner who promised not to gain weight and then one year later is 50kg heavier? Would that count as an “egregious” lie?

You may think that this is facetious, but when it comes to public policy, such questions must be asked and the policy ought to be rejected if convincing answers aren’t given. We can agree that breaking your promise to your partner on not gaining weight and then gaining weight by choice is morally wrong. But should it be illegal?

Also, given that the US is a culture more prone to litigation than Europe, let’s look at the enforcement end of this law. If such a law were to be on the books, it would follow that one could sue the partner for not pleasing him or her just as much. Or for taking $20 from the fridge and go out with friends without notice.

Ms. Lewis is adamant that this is not her intention, nor the lawmakers’ – and that may indeed be 100% true. But when it comes to public policy, there is such a thing called the law of unintended consequences. The best intentions in the world are not good enough to bring good results – or even the intended results.

When no-fault divorce was introduced, virtually nobody intended to destroy the family – but rather to help those perceived to be “trapped” in marriages. Being well-intended just isn’t a guarantee for anything, and this is true especially when it comes to do-good public policy.

The lying industry

Whether we like it or not, there is such thing as the cosmetics industry which is, essentially, an industry that exists for the sole purpose of helping people (mostly women but some men too) to deceive for the purpose of sexual gratification.

The US is the largest cosmetic market in the world with a revenue of over $60 billion dollars – more than Slovenia’s annual GDP and twice as much as Senegal’s GDP.

Also, besides the cosmetics industry, there is also the growing market of cosmetic surgeries. Whether Ms. Lewis and the lawmakers of New Jersey want it or not, such a law is bound to cross hairs with these industries at some point in the future. And what then? Start banning certain products for certain people? And on what criteria?

And, more importantly, is this the road the US wants to go down?

Let’s take another extreme example (similar to Ms. Lewis’): Three years ago, a case in Belgium made international headlines when a man found out his wife… used to be a man.

Sex reassignment surgery is essentially cosmetic surgery. And, just like in Ms. Lewis’ case, the wife in this story also forged the papers and hid the reality. Not for one year like in Ms. Lewis’ case – but for 19 years.

Most can agree that the “wife” in the Belgian story was morally wrong. But should that deed be criminally punished? By Ms. Lewis’ law, it would be.

Dubious legislative text

The law defines this new form of “rape” as:

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.

Interesting. Notice that the law is worded in such a manner that only a man can be the perpetrator. Ms Lewis says we’re wrong and in the thread quoted above she also says:

Also penetration is not just penis and vagina. It’s anything that crosses an opening be it finger, tongue, vibratory or penis. And any opening can be a mouth, ass or vagina. So do not attempt to extrapolate my meaning by one word. Just because the terminology says HE, doesn’t mean just men. The law is to cover all sexes equally.

That’s cute, but that’s not how the law works. If when talking about the victim the law says “a person” and when talking about the perpetrator the law clearly says “he” – there’s no way you can convince anyone that the law covers “all sexes equally” – no matter how much Ms. Lewis says so.

Also, the legal tradition (which matters more than Ms. Lewis’ opinion) showed repeatedly that no, penetration doesn’t mean “anything that crosses an opening” and given that male rape victims are still defined in the US as “made to penetrate” – one can already see that the wording of this law simply does not cover all sexes equally when push comes to shove.

More to the point – “has represented he is someone he is not” is so vague that it can apply to anything. If one lies about being a vegetarian to get in bed with a vegetarian, is that rape? According to this law, it is because one “has represented he is someone he is not”.

By the same token, if a man says he owns a mansion and based on that information the woman chooses to have sex with him and then it turns out he doesn’t own a mansion, is that rape? Well, according to the proponents of this law, yes it is. But should it be? If you chose to get in bed with someone based on what that someone owns, it says more about you as the “victim” than about the “perpetrator”. Sure, the perpetrator is a liar, but the “victim” just exposed herself as a gold-digger and a liar (since the sex act was consummated because of the partner’s possessions, not genuine attraction).

Such realities can’t be negated just because a single mom feels hurt in her feelings. Deploying public policy on hurt feelings rarely leads to sound results.

Conclusions

Given the realities explained above, one should conclude that everyone is better off if such laws don’t exist.

There are already enough legal protections for victims of rape and for victims of fraud. Ms Lewis was a victim of fraud and she had her day in court and received justice. She was not a victim of rape. And no amount of Social Justice Warrior-type of discourse can change that.

It’s understandable if Ms. Lewis feels violated in her trust – but that is not (nor should it be) reason enough to turn the legal system on its head and open the floodgates to even more incarcerations. Because when you get to the brass tacks of it, the legal ramifications (which are real and unforgiving, regardless of Ms. Lewis’ opinion) can and will essentially cast a significant portion of the populace (if not the majority) as criminals.

And if even Ms. Lewis’ extreme case doesn’t hold scrutiny, imagine the legal nightmare generated by a milder version of her case.

Erin Pizzey is well intended when she says we should think about this but the fact of the matter is that the more we think about this, the more we ought to realize that it’s a terrible idea to involve the criminal justice system in this fashion in interpersonal relationships.