This is Why People Don’t Trust the Legal System

By Michael Baker

What constitutes “consent”?  That seems like such a simple question, and that’s because it is.  But leave it to a bunch of judges to turn the concept of consent upside down.

A California appellate court has overturned the rape conviction of a man who sneaked into a woman’s bedroom at night and had sex with her by pretending to be her boyfriend.  The man was convicted based on an obscure old California law that says that it constitutes rape to have sex with a woman by pretending to be her husband; the appellate court has decided that the law only applies to a married woman, and doesn’t apply when a woman is fooled into believing that the man she is having sex with is her boyfriend, fiancé, friend with benefits, or casual fling of choice.

The crux of the appellate opinion that overturned this conviction is that, technically speaking, the victim in this case consented to having sex with her faux BF, meaning that the act can’t constitute a rape unless the law provides for some exception, and that an exception is only provided for married women.  But that just seems incorrect.

The focus of the opinion is on whether the law applies to an unmarried woman who is fooled regarding the identity of her sexual partner.  But what the opinion should have focus on is the meaning of consent.  Has a person consented to having sex if she is incorrect about the identity of the person she is having with?  That’s the real question; it’s more complicated than reading a statute, and it’s what criminal courts are for.

Here, the court reasoned that the victim consented to having sex generally, regardless of her incorrect belief about who she was having sex with.  But clearly the idea of consent implies some level of knowledge and understanding on the part of the consenting party.  “I consent to sex with Person A” should not be equated with “I consent to sex with anyone who I can be duped into believing is Person A.”  If it is, the door is wide opened for any sneaky perv with a knack for impersonating the voice and mannerisms of a totally studly gentleman.

It might not always be the case that consent implies this kind of knowledge.  In the field of contract law, for example, a party generally cannot weasel out of a contract because they were unaware of the identity of the other contracting party (as long as the other party still holds up their end of the bargain).  But clearly there’s something different about consenting to have sex.

Given the extremely personal (as opposed to economic or purely utilitarian) nature of the act, the person who you’re having sex with should generally be as important, or more important, than the act of having sex itself.  Your choice of sexual partner is integral to your choice to have sex, and to deny that as the appellate court has in this case is to ignore something that everyone understands to be true.

This sort of overly-formalistic approach to the law is what makes people think of lawyers as crafty and dishonest, and judges as rigidly out of touch.