Thursday, July 22, 2010

Unstructured Thoughts about the Rape by Deception Ruling

I am literally seething about this ruling (found via search-for-emes). And actually not the racist, Jim Crow part that bothers everyone else, because although that's horrible, the real problem here is the ruling that all sex achieved through lying is rape.

The ruling seems like a reductio ad absurdum of the Israeli judicial obsession with everyone playing nice. When it came up in contracts and Aharon Barak was saying that everyone must be full of good faith and "homo homini homo" if not "homo homini deos", well, it was sort of cute. When the court decided that good faith applies to all fields of law at all times, well, at least they were sticking to civil law. But do they honestly not understand that there is a line between moral and legal duties and that not everyone who is not nice ought to be tried in court? And fine, tried in civil court or even criminally fined, but you're going to equate this with rape?

The Israeli court has increasingly taken power compared to the legislature and executive branches, and while I theoretically oppose this, I can see how the temptation to sort things out when you're the only competent person involved would be pretty overwhelming. But this- this is simply megalomania to think that every single not particularly nice action ought to be taken to the courts for them to determine whether it's so not nice as to be criminal. I tend towards the libertarian personally, but this- this has zoomed down the libertarian spectrum way past Republicans or Democrats and is currently so distant from it that the curvature of the universe should be coming into play soon.

And like most anti-libertarian ideas, it leans towards paternalism, except that in this case, it's leaned so hard that it fell right over into out and out patronization, claiming that women wander around innocently, victims to smooth-talking con-men waiting to steal their precious virtue. Women have plenty of ways to protect themselves. One of them- and I'm not trying to judge the plaintiff here, but honestly- one of them is to wait a bit before sleeping with someone so you have more time to confirm the story they're telling you. Or, you know, google them, which in this case might have revealed that he was married. And the more that a trait matters to you, and the more devastated you would be to discover that it were false, then the more you wait and the more research you do. You don't go crying to the court to protect you from deception in dating.

Is there anyone out there except the judges who want every bad break-up or unhealthy relationship dragged before the court for inspection? And hey, did anybody else notice that we may have just created a de facto criminal law against cheating in a relationship? Or saying you love her when you don't? Heck, a judge who could keep a good straight face could probably convict a woman of rape for wearing make-up.

I don't have a summation here, but I'm still a little steamed.

14 comments:

mike said...

It seems that the principle behind the ruling is that rape as we think of it is actually a combination of rape and assault.
If we go to the original case (where a person lied about his authority to give out protektzia) calling it rape
is in a sense saying that defrauding somebody about sex is fundamentally different from financial fraud, which I think is widely accepted (not so much by libertarians) as seen by the relatively widespread bans on prostitution.

I think the court wants the definition of rape to be coercing somebody into sex (which would include defrauding them) and what we consider to be rape to be the specific case where the coercion is done through physical assault.

Tobie said...

To be fair, he got a separate category of rape called rape-by-defrauding which carries a lighter prison sentence. The idea, which has some merit as an idea, is that consent isn't consent if it's based on lack of full information. It's kind of like informed consent for medical procedures- if you leave something out on the consent form, then it's assault.

However, I still don't think that these actions should in any way be criminal. The dude in the original case should have gotten busted for soliciting prostitution. The dude in this case should have gotten the traditional punishment for being a jerk, which is that you get called a jerk and maybe get a drink thrown in your face. I guess my general approach is that defrauding someone of anything other than money- be it time, sex, friendship, etc- should be in the moral and not the legal sphere, simply because I want the courts out of delicate social, psychological realms.

mike said...

Would you feel that the court's should similarly stay out of it if through a similar deception he had taken a large sum of money from the woman?

mike said...

Sorry didn't read closely enough, but the question stands why is money fundamentally different?

Tobie said...

Because monetary relations are already a more cerebral, less private, more formal system of relations that won't be screwed up by letting the court into them. Although even so, I'd probably see a difference between getting her to invest in a project and getting her to buy him an expensive gift within the boyfriend context. But gifts are different from financial transactions because they are personal, not business. So yeah, it's generally that law can be in business, but not in inter-personal relationships.

One solid distinction would be between misrepresentation as to the nature of the action (i.e. investing as opposed to giving me money) versus misrepresentation as to the nature of the parties involves (i.e. giving a gift to a bad boyfriend versus giving a gift to a good one). I think I saw that California law, for example, considers misrepresentation as to the nature of the action as sex (no, I'm not sure how that would work either), while misrepresentation as to the parties, obviously, isn't. That distinction feels right, although I'm not entirely sure why. Possibly because there are so many shades and components to personality and identity of people, while transactions can be easily classified without harming their complexity, distorting, or just completely misrepresenting them.

Do you, in principle, agree that this is a horrible ruling? (Just out of curiosity. You can continue Devil's advocating even if you do).

mike said...

I think in practice it is a bad ruling but I don't think there is any way to derive from first principles that it is a bad ruling. It comes down to a question of whether the cost of having law enforcement punish these lies is greater than the cost of the lies themselves. I think it is almost certainly a question which belongs to the legislative branch but this is Israel we're talking about.

Tobie said...

I guess if you want to be utilitarian, I'm just going one level up and saying that the costs of the courts getting into these sorts of questions (i.e. criminalizing being mean) are invariably higher than the benefits of meanness being avoided, even if there might be small spheres in which the interference can be useful. Similarly, keeping the courts and the people aware that courts are not moral guardians is generally useful, and I think it's better for this to be the starting point.

As for first principles, I think an argument could be made for no government interference in informal relationships. Either from principles about the place of the gvt etc, or even for utilitarian reasons, because they distort the relationship while providing little benefits because the court isn't good at being intelligent in these fields (for example in this case, they didn't really think about consequences, and basically protect the woman from a risk that she pretty much willingly accepted).

Tobie said...

I actually like the distinction that Posner makes here: http://www.projectposner.org/case/1995/44F3d1345 (search for seduction and read from there if the whole thing is too long)

The differentiation is based on the interest protected (like I tried to say above about what the misrepresentation is). Now, you could argue that protected interests are chosen based on utilitarian criteria, but I think it's more efficient to make those decisions on the protected-interest level than the individual level, and I don't think this case involves a legitimate interest- her interest here isn't that of bodily integrity but that of only having sex with Jews and I don't buy that as something that should be protected, and certainly not by criminal sanctions.

mike said...

I think there are situations where even non-contractual situations should be eligible for fraud provisions. I don't think that you can say because it is informal it is therefore no buisness of the court, for example if somebody knew they were infertile and got married I think that it would be a proper action of the law to make that person eligible for civil punishment. (I would not agree to criminal proceedings in any of these cases this seems like a straightup tort)

Tobie said...

I didn't say contractual, I said formal. Money transfers are formal. Marriage is formal- I wouldn't support the suit if the person only lied to a girlfriend. However, I think that the protected interest distinction is a better one, because I would support criminal law handling somebody who beats up his girlfriend, which is, admittedly, personal. So yeah, go with protected interests and my main complaint is that the court is increasingly making feeling bad a protected interest.

mike said...

Would you say that a person who had an STD and lied about it would be telling a lie which should be legally enforced (leaving aside reckless endagerment)?

Tobie said...

Possibly. The protected interest there, though, is the interest in health/bodily integrity. Even if she didn't contract the disease, you could make the case for reckless endangerment or whatever, because protection for the interest of bodily integrity is pretty wide.

Nancy said...

I can understand you are a bit steamed. By the way, I loved your "about me". I can relate to it.

This is Nancy from Israeli Uncensored News

Anna @ Israel said...

Being a woman and if cheated, it's equal to being raped but only psychologically. I'm sure it's very similar with men, too. But I think there will be to much mess if people are prosecuted for cheating each other.