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MADELEINE BRAND, host:

This is Day to Day from NPR News, I'm Madeleine Brand.

ALEX COHEN, host:

And I'm Alex Cohen. Is it rape if there is not physical force involved? That is the difficult question lawmakers in Massachusetts are now grappling with. They are considering a proposal that would make it illegal to trick someone into having sex.

BRAND: NPR's Tovia Smith has more and a word of caution. Her story contains some sensitive material.

TOVIA SMITH: In many ways it seems like the stuff of urban legend. In fact, even police had trouble believing Merissa Lee-Fuentes when she said she truly didn't realize who she was having sex with.

Ms. MARISSA LEE-FUENTES (Alleged Rape Victim): He definitely deceived me because I didn't know that wasn't my boyfriend.

SMITH: Fuentes' raw emotion eventually convinced police she really had been tricked by her boyfriend's brother. She says she'd been fast asleep in the dark basement bedroom she shared with her boyfriend, when she heard footsteps she assumed were his.

Ms. LEE-FUENTES: I heard him next to the bed. I was facing the wall. The next thing I know, he starts kissing me or whatever.

SMITH: Fuentes says she never suspected a thing until after they had sex, and he got up to leave.

Ms. LEE-FUENTES: That's when he opened the door, and I see the light from the upstairs door and he went, shh, with that disgusting look on his face, with that smirk. Don't tell nobody. And I'm just like, oh my God, what just happened? Like, I totally freaked out.

SMITH: Fuentes immediately went to the police, and her boyfriend's brother was charged and later tried for rape. But Fuentes was ultimately horrified all over again when Massachusetts highest court ruled that because the guy never used physical force, what he did, didn't legally amount to rape.

Ms. LEE-FUENTES: I just was like I don't understand. But I didn't consent. I consented to my boyfriend. And for them to say, well, it's not really rape. Well, how can it not be? How can it not be?

Representative PETER KOUTOUJIAN (Massachusetts State Representative): There is a loophole in our law here in Massachusetts, where rape by fraud is something that people can get away with quite frankly.

SMITH: State Representative, Peter Koutoujian filed legislation to close that loophole after he heard about another case that couldn't be prosecuted, where a pharmacist convinced a pregnant 21-year-old that he was a doctor, and got her to agree to a vaginal exam.

Rep. KOUTOUJIAN: This is not something new. It's not something isolated. These are sociopaths, and right now we can't get them. They are walking free.

SMITH: Koutoujian's bill would make it a crime to use quote, "fraud, concealment or artifice," to trick someone into sex. Almost a dozen other states already have such laws, but the sweeping language is raising objections from even some of the most ardent activists against sexual violence, like former prosecutor, Wendy Murphy.

Ms. WENDY MURPHY (Former Prosecutor): Any time I hear about rape by fraud, I just get the willies because I'm worried they are going to sweep up too many cases where people fib a little to get some nooky, you know.

SMITH: You know the lines? Really? I'm not married. Really? I own the company.

Ms. MURPHY: You know it's so much of what we do in terms of sexual negotiation is a little pounding of the chest. You know, that's not criminal, that's human.

SMITH: If you want to criminalize the kind of thing that happened to Fuentes, Murphy says, better to just create a new law that simply bars rape without force.

Ms. MURPHY: If you take my money, without my consent, it's called larceny. If you take it without my consent, plus you use force, it's called robbery. How come we don't have rape with force, rape without force? That's it.

SMITH: Some say even that would cast the net too far. UCLA Law Professor, Eugene Volokh favors more narrow, specific laws, like the ones in many other states that make it a crime to have sexual contact, for example, by falsely claiming medical necessity, or by impersonating a spouse.

Professor EUGENE VOLOKH (Professor, Law Department, UCLA): I think it's better to focus on particular kinds of conduct that we all agree are bad, and outlaw those kinds of conduct. I don't see much of a pressing social need to go more broadly, and I do see a lot of potential harm.

SMITH: But prosecutors say they could never anticipate every scenario. Patrick Sabbs who prosecuted the Fuentes case, says he's had lots of others where he couldn't bring charges, for example, there was the recent trend at frat parties, where a guy would take a girl back to his room to have sex with her consent...

Mr. PATRICK SABBS (Prosecutor): But somewhere along the lines, when the lights were off, he would grab the blankets, get up, say, I have to go to the bathroom, or something and either somebody out in the hall, he'd put the blanket on. He'd come in, and he'd have sexual intercourse with her, and she had no idea that she was having intercourse with somebody who wasn't the first young man that she came home with. You'd be amazed at what people think of.

SMITH: But rape laws that are broad enough to cover that kind of thing would leave too much discretion to prosecutors and juries, says Volokh. There is a lot of bad behavior, he says, that falls short of rape.

Prof. VOLOKH: If we are to have a crime here, I think it shouldn't be called rape. It shouldn't be treated as serious as rape. Sex is procured through falsehoods. I don't think it would generally be as serious as sex that actually happens through forcible coercion.

Ms. LEE-FUENTES: No way, rape is rape. When someone does not consent, it should be rape.

SMITH: If anything, Marissa Lee-Fuentes says she thinks it's worse to be violated by someone she trusted. And she still struggles with the notion that the law lets him do it.

Ms. LEE-FUENTES: He took something from me that I didn't want to give him. And he just walked off scot-free. And they need to do something about it.

SMITH: She says lawmakers should pass the broadest law possible. No one's going to waste their time prosecuting some cad with a bad pick-up line, she says. Common sense will dictate what is rape, and what isn't. Kind of like that famous definition of pornography, you know it when you see it. Tovia Smith, NPR News, Boston.

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