Rape by Fraud: Don’t Say I Love You Unless You Mean It!

Last week it was reported in the national media that a legislator in New Jersey is attempting to enact a rape by fraud statute in New Jersey.

I wish I could say that this is just one isolated law maker in one isolated state and that no such crime would ever actually be enacted in a country or a state that purports to value liberty and freedom.  However, Tennessee is one of four states which already has a rape by fraud law, See, Tennessee Code .Annotated 39-13-503(a)(3), and fraud in Tennessee is defined in T.C.A. 39-11-106(a) (13) which states: “the term is used in normal parlance and includes, but is not limited to, deceit, trickery, misrepresentation, and subterfuge, and shall be broadly construed to accomplish the purpose of this title”. In my opinion this definition is broad enough to include a simple lie.

Any Lie, Big or Small, Could be Construed to be Rape by Fraud

There are certainly many people who believe this is a good thing.  I do not, at least not under the very broad definition of Fraud in Tennessee which would allow a prosecution for rape by fraud in almost any case where a person told any lie to induce their partner.  The lie sufficient to constitute fraud under the very broad definition of fraud could include any lie including whether that lie was to deny being married or a lie about being a doctor worth millions when he was a bar tender in bankruptcy.

These Types of Laws Criminalize What Should be Private Disputes

The proponents of these types of laws will claim that these laws are only to be applied to the most abusive cases and that prosecutions are rare, and a prosecution for rape by fraud for telling a simple lie is even rarer or even non-existent.  This does not make me feel any better.  Any law that is on the books has the potential to be misused by over zealous or corrupt prosecutors. Furthermore, as a criminal defense attorney I have seen over the past 25 years how various States and the federal government have increasingly inserted the government into controlling and regulating through the criminal law what should be private relations or private disputes. As that trend continues the likelihood that a law such as the rape by fraud statute will be used to inflict upon the citizenry the government’s politically correct agenda increases.

Should the Government be Criminalizing Private Behavior?

Lying to get someone to sleep with you is certainly immoral but is this something that the government should be criminalizing? I don’t think so.  At some point individuals must take responsibility for their own actions which include taking responsibility for vetting who they decide to sleep with.  Otherwise we start to take a very terrifying ride down the slippery slope of having the government regulate and criminalize everything we do, including telling someone you love them.  For under a strict application of the Tennessee Rape by Fraud Law, if you tell her you love her just to sleep with you could be arrested, tried, and if convicted sent to prison for 12 years.  Welcome to the Nanny State.

Brent Horst, Attorney, Nashville Tennessee

Board Certified in Criminal Trial Law

Licensed in Tennessee and Florida