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3rd-Degree Sexual Assault – Consent Obtained “by Fraud”

State v. Kelly J. McCredie, 2010AP1179-CR, District 2, 3/2/11

court of appeals decision (not recommended for publication); for McCredie: William E. Schmaal, SPD, Madison Appellate; case activity

For purposes of 3rd-degree sexual assault, § 940.225(3), the actor cannot obtain consent by deceiving the victim as to his true identity. McCredie misled the victim into thinking he was his brother (she was sleeping in a dark room when he suddenly appeared; she had extended an invitation to, she thought, his brother to spend the night, albeit not to sleep with her). That she may have consented to sexual activity with one person doesn’t amount to consent to have sex with someone else: “A victim cannot consent to sexual intercourse if the defendant has disguised his true identity.  One cannot obtain valid consent by use of fraud or deceit.  Fraud vitiates consent.  Slawek v. Stroh, 62 Wis. 2d 295, 314, 215 N.W.2d 9 (1974),” ¶14.

An interesting problem, as put by the court at a high level of generality: if you deceive someone gullible or drunk enough into believing you’re some brighter-wattage person, you’ve vitiated any consent to bathe in the glow? The 7th Circuit’s discussion of an admittedly different problem highlights the idea that the fraud principle isn’t as unyielding as the quote above suggests, Alexander v. DeAngelo, 329 F.3d 912, 917 (7th Cir. 2003)(“Granted, not all fraudulent solicitations of sex, even if successful in inducing sex, are actionable as battery or punishable as rape. For example, it is not a battery, or rape, to induce consent to sexual intercourse by a false promise of marriage, Oberlin v. Upson, 84 Ohio St. 111, 95 N.E. 511, 512 (1911); Freedman v. Superior Court, 214 Cal.App.3d 734, 263 Cal.Rptr. 1, 3 (1989); see also Restatement (Second) of Torts § 892B, comment g and illustration 9 (1979), though in some states it is the tort of breach of promise.”) In any event, it turns out that the victim didn’t mean to consent to sex anyway, with either brother, ¶15 – a narrower basis for rejecting the theory of consent.

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