The purpose of this Essay is both descriptive and normative. On the descriptive level, this Essay details the Israeli jurisprudence and scholarly opinions on the issue of rape by deception in a way accessible to non-Hebrew readers, and briefly compares it with approaches taken elsewhere. On the normative level, the Essay seeks to show that the various attempts to answer the question of which characteristics can constitute deception all fail. In particular, it seeks to show that the Israeli approach is the least attractive, a conclusion that, it is hoped, may serve as a warning to reformers in other jurisdictions who consider going in a similar direction to that taken by Israeli criminal law.
It should be noted that the scope of the offense of rape by deception has at least two dimensions. This Essay only discusses the content of the deception: deception as to which characteristics should be criminalized. The other dimension, not addressed in this Essay, is the form of deception: what conduct amounts to deception. In particular, this Essay does not discuss whether omitting information regarding relevant characteristics amounts to criminal deception, what presumptions should be made about the parties’ mental states, what duties to disclose or inquire each party should comply with, or whether these questions should be assessed against subjective or objective standards.
The Law of Deception,
Notre Dame L. Rev. Online
Available at: https://scholarship.law.nd.edu/ndlr_online/vol93/iss1/13