Rape By Fraud

Ken AshfordCrimeLeave a Comment

This is one of the cases that you get in law school, or even on a law exam:

The unusual case dates to a night in January 2005. The woman had been living with her boyfriend, Duane Suliveres, for several years in a furnished room in the basement of his father’s home, according to the defense brief. His brother, Alvin, had been staying in another room for several months.

The incident happened when Duane was working the night shift at an envelope manufacturer in Westfield, the brief said. At 3 a.m., the woman later told authorities, she was awakened by the sound of the door opening in the dark room and said, "Duane, why are you home so early?" but heard no response. Then, she said, she felt someone who she thought was her boyfriend get into bed, remove her clothes, and climb on top of her. They had sex for about 10 minutes, she told police.

After he got up, he opened the door and she saw in the light from the hallway that it was Alvin Suliveres, she told authorities. She contacted the police shortly afterward.

So, in essence, she thought she was having sex with Duane, but it was really Duane’s brother, Alvin.

The legal question: Was this rape?

The high court of Massachusettes ruled yesterday — no, it is not rape.  "Rape" is defined (in Massachusetts, like most other states) as sexual intercourse by force and against one’s will.  There was no force.

I think the ruling is, sadly, correct.  Although I wonder why Alvin wasn’t prosecuted for something else — i.e., fraud, false pretenses, or a host of other crimes.