Adult Impersonation: Rape by Fraud as a Defense to Statutory Rape

Abstract:     
This Article explores an intersection of the laws of statutory rape and rape by fraud that has been hiding in plain sight for over a century. Consider the common scenario of a juvenile who looks eighteen and claims to be eighteen, but is only fifteen. While an adult's reasonable reliance on a juvenile's false representation of being above the age of consent is not a defense to the strict liability offense of statutory rape, it does constitute an entirely new form of rape by fraud. By obtaining intercourse with the adult by such a material misrepresentation, the juvenile commits rape by fraud under existing standards and rationales in over thirty jurisdictions. Due to the juvenile's fraud, the juvenile perpetrates rape by fraud and simultaneously becomes a victim of statutory rape; while becoming a perpetrator of statutory rape, the adult is simultaneously a victim of rape by fraud. In turn, this new form of rape by fraud - which we term adult impersonation - may lay the foundation for a new defense to statutory rape. One should not be criminally liable as a perpetrator of statutory rape for the very act of intercourse by which one is a victim of rape by fraud. This Article concludes that what statutory rape law bars as a defense supplies the basis for a new form of rape by fraud; in turn, this new form of rape by fraud supplies the basis for a new defense to statutory rape.

Keywords: rape by fraud, statutory rape, rape, consent, juvenile, mistake of age, strict liability, fraud, impersonation, spousal impersonation, adult impersonation, deception, fraud in the factum, fraud in the inducement

JEL Classifications: K14

Accepted Paper Series