Van Lente is right and NY's rape statute sucks

You know, I wasn't going to comment on that whole Chameleon debacle, since I don't read Spider-Man. But after reading Fred Van Lente defending himself and the various reactions to it, I kind of feel like I have to contribute.

I don't think a lot of you will like what I have to say.

Mr. Van Lente says:

My understanding of the definition of rape is that it requires force or the threat of force, so no. Using deception to trick someone into granting consent isn’t quite the same thing.

Which is not to say it isn’t a horrible, evil, reprehensible thing that Chameleon did. He is a bad man.

He insults parapelegics[sic] and dips people in acid too.

Before we burn him in effigy, please note that "force or threat of force" generally includes things like being drugged unconscious (force, even if she doesn't know it) or blackmail/extortion (threat of force). He's not "narrowing the definition of rape", he's relating the current status of New York State Law.

Quite a few states DO recognize a fraud or mistaken identity in their rape statutes. Louisiana does. I think that Arizona does. But unfortunately, New York does not.

I took these straight from Westlaw (what all the cool proto-lawyers use).

McKinney's Penal Law 130.20 specifically says:

A person is guilty of sexual misconduct when:

1. He or she engages in sexual intercourse with another person without such person's consent; or

2. He or she engages in oral sexual conduct or anal sexual conduct with another person without such person's consent; or

3. He or she engages in sexual conduct with an animal or a dead human body.

Sexual misconduct is a class A misdemeanor.

McKinney's Penal Law 130.05 defines consent:

1. Whether or not specifically stated, it is an element of every offense defined in this article that the sexual act was committed without consent of the victim.

2. Lack of consent results from:

(a) Forcible compulsion; or

(b) Incapacity to consent; or

(c) Where the offense charged is sexual abuse or forcible touching, any circumstances, in addition to forcible compulsion or incapacity to consent, in which the victim does not expressly or impliedly acquiesce in the actor's conduct; or

(d) Where the offense charged is rape in the third degree as defined in subdivision three of section 130.25, or criminal sexual act in the third degree as defined in subdivision three of section 130.40, in addition to forcible compulsion, circumstances under which, at the time of the act of intercourse, oral sexual conduct or anal sexual conduct, the victim clearly expressed that he or she did not consent to engage in such act, and a reasonable person in the actor's situation would have understood such person's words and acts as an expression of lack of consent to such act under all the circumstances.

3. A person is deemed incapable of consent when he or she is:

(a) less than seventeen years old; or

(b) mentally disabled; or

(c) mentally incapacitated; or

(d) physically helpless; or

(e) committed to the care and custody of the state department of correctional services or a hospital, as such term is defined in subdivision two of section four hundred of the correction law, and the actor is an employee, not married to such person, who knows or reasonably should know that such person is committed to the care and custody of such department or hospital. For purposes of this paragraph, “employee” means (i) an employee of the state department of correctional services who performs professional duties in a state correctional facility consisting of providing custody, medical or mental health services, counseling services, educational programs, or vocational training for inmates;

(ii) an employee of the division of parole who performs professional duties in a state correctional facility and who provides institutional parole services pursuant to section two hundred fifty-nine-e of the executive law; or

(iii) an employee of the office of mental health who performs professional duties in a state correctional facility or hospital, as such term is defined in subdivision two of section four hundred of the correction law, consisting of providing custody, or medical or mental health services for such inmates; or

(iv) a person, including a volunteer, providing direct services to inmates in the state correctional facility in which the victim is confined at the time of the offense pursuant to a contractual arrangement with the state department of correctional services or, in the case of a volunteer, a written agreement with such department, provided that the person received written notice concerning the provisions of this paragraph; or

(f) committed to the care and custody of a local correctional facility, as such term is defined in subdivision two of section forty of the correction law, and the actor is an employee, not married to such person, who knows or reasonably should know that such person is committed to the care and custody of such facility. For purposes of this paragraph, “employee” means an employee of the local correctional facility where the person is committed who performs professional duties consisting of providing custody, medical or mental health services, counseling services, educational services, or vocational training for inmates. For purposes of this paragraph, “employee” shall also mean a person, including a volunteer or a government employee of the state division of parole or a local health, education or probation agency, providing direct services to inmates in the local correctional facility in which the victim is confined at the time of the offense pursuant to a contractual arrangement with the local correctional department or, in the case of such a volunteer or government employee, a written agreement with such department, provided that such person received written notice concerning the provisions of this paragraph; or

(g) committed to or placed with the office of children and family services and in residential care, and the actor is an employee, not married to such person, who knows or reasonably should know that such person is committed to or placed with such office of children and family services and in residential care. For purposes of this paragraph, “employee” means an employee of the office of children and family services or of a residential facility who performs duties consisting of providing custody, medical or mental health services, counseling services, educational services, or vocational training for persons committed to or placed with the office of children and family services and in residential care; or

(h) a client or patient and the actor is a health care provider or mental health care provider charged with rape in the third degree as defined in section 130.25, criminal sexual act in the third degree as defined in section 130.40, aggravated sexual abuse in the fourth degree as defined in section 130.65-a, or sexual abuse in the third degree as defined in section 130.55, and the act of sexual conduct occurs during a treatment session, consultation, interview, or examination.

So far so good, but unfortunately there's "legal commentary" attached:

9. Seduction distinguished

Sexual misconduct differs from seduction, in that “seduction” involves allurement, enticement, or persuasion to overcome unwillingness or resistance. People v. Hough, 1994, 159 Misc.2d 997, 607 N.Y.S.2d 884. Seduction Key Symbol 33

In seduction, unlike rape, the consent of the woman, implied or explicit, has been procured by artifice, deception, flattery, fraud or promise. People v. Evans, 1975, 85 Misc.2d 1088, 379 N.Y.S.2d 912. Seduction Key Symbol 29

Yeah. And you see that case mentioned above? Hough? In it the girl's boyfriend's twin brother tricks her into thinking he's her boyfriend. Yeah, about as close to a real world analogy as you can get.

And that case was in 1994.

So, yeah. Mr. Van Lente is right. At least in New York. It's a deplorable, evil act for a man to trick a woman into having sex by fraud or mistaken identity. But legally it's not rape.

New York kind of sucks sometimes.

((Disclaimer: Please note that this does not constitute legal advice, and I'm not a lawyer. If you find yourself in a comparable situation, please call the cops and a lawyer! Laws can change and there may be additional ways to get some justice!!!))

(Edited to acknowledge that, not having read the story, if the girl IS under the age of consent, then Mr. Van Lente is indeed mistaken, and the offense would be prosecutable as rape regardless of her level of consent.)