A bill filed yesterday would expand the scope of the state's rape law, allowing prosecutors to bring charges against those who use fraud or deceit, not just physical force, to engage in sexual intercourse.
Proponents said the existing law must be tightened after a Westfield man allegedly had sex with his brother's girlfriend while posing as his brother in a darkened room and after a Wilbraham pharmacist allegedly posed as a gynecologist and gave exams to two women.
The Supreme Judicial Court ruled last year that the Westfield man could not be convicted of rape because sex obtained through fraud is not a crime, and Hampden County prosecutors decided last month that they could not bring rape charges against the pharmacist for the same reason.
In its ruling last year, the state's highest court urged the Legislature to address the issue, a process begun this week.
"For far too long our state has inadequately served survivors of rape and sexual assault, yet based statute and common law on the dispelled myth that rape happens only at night, in a dark alley, at the hands of a stranger; this is not the case," said Representative Peter Koutoujian, Democrat of Waltham, who filed the bill.
Joining him at a press conference at the State House yesterday were Middlesex District Attorney Gerard T. Leone Jr. and Worcester District Attorney Joseph D. Early Jr.
"No continues to mean no; what this bill will ensure is that yes means yes," Leone said.
Koutoujian said the law would not ensnare so-called boasters, people who might brag of being a war veteran, a sports star, or something similar.
"This legislation is meant to target sociopaths," he said.
Nonetheless, Leone acknowledged that he expected the issue would be discussed by the Legislature, because the bill as drafted does not specifically exempt boasters by name.
It says, in its entirety: "Whoever has sexual intercourse or unnatural sexual intercourse with a person having obtained that person's consent by the use of fraud, concealment, or artifice and who thereby intentionally deceived such person so that a reasonable person would not have consented but for the deception, shall be punished by imprisonment in the state prison for life or any term of years. As used in this statute, `fraud' or `artifice' shall not be construed to mean a promise of future consideration."
Leone said that fraud, concealment, and artifice have defined contexts in the courtroom and that any court hearing a boasting case would probably look at the Legislature's intent in passing the expanded rape definition before deciding whether charges were warranted.
In addition, the final sentence would exempt those who obtained sex by, for example, promising to marry someone or give them a role in a movie.
Amid a series of questions from reporters, Koutoujian said prosecutors would consider societal norms, adding, "I don't know a norm of society right now that would bring those up for a charge of rape." He immediately added, "We can never say never."
One supporter of the bill - Mary Lauby, executive director of Jane Doe Inc., a support service focused on ending domestic violence and sexual assault - said it also shifts legal thinking from long-held concerns rooted in property law or defendants' rights to those more oriented toward victims and nonphysical threats.
"Neither of those serve us in the universe I live in," she said of property or defendant rights.
