Questioning the timing of reality

A local news item serves as a reminder that despite the prevailing meme of an "anything goes" culture, the legal system increasingly reflects a growing tendency to treat garden variety immorality as rape. Moralists who like to complain about defining deviancy down are generally silent about the expansion of rape to include the type of conduct traditionally regarded as sleazy.

Jeffrey Marsalis falsely claimed he was an astronaut and a physician, and the women who fell for it went out on dates with him and later had sex. Only months later (after learning months later that he was not the successful professional he claimed to be) did they report the sexual intercourse as rape:

The first woman to testify [...] came forward in November after seeing a news report of Marsalis on television. And she told a doctor of the attack two months after Marsalis allegedly raped her in January 2003 in his apartment at the Metropolitan in Center City. The doctor's note of the rape allegation was entered into evidence.

The New Jersey woman, who was 26 at the time, described meeting Marsalis through Match.com in December 2002.

Marsalis, who used the screen name "Doctor Jeff," posted various photos of himself on his profile, including one of him in an astronaut suit.

She exchanged e-mails, had conversations with him over the phone, and agreed to a date.

"He seemed like an average guy - very nice," she testified.

They spent the first part of their date at the Independence Brew Pub, at the Reading Terminal.

The woman said Marsalis told her that he was a doctor at the University of Pennsylvania and that he also was an "in-flight doctor" for NASA.

He flashed her a badge, she said, apparently to prove he worked for NASA.

They sipped some small beer samples and then each ordered a pint of beer, she said.

Either while drinking that beer or starting a second, she left to use the ladies room, she said. Sometime after she returned and continued drinking, she said she "started to feel disoriented, very passive, very uncomfortable."

Marsalis suggested she go to his apartment and let the effects of the alcohol pass. She agreed.

She also acknowledged that she began kissing Marsalis and letting him remove her shoes and panty hose, but said she stopped his hands "climbing up my leg" and told him she did not want to have sex.

They continued to kiss, "and then I lost memory," she said.

She regained consciousness to find herself naked in his bed with Marsalis on top of her, she said.

"I remember telling him to stop. I remember telling him he was hurting me," she testified.

She said he expressed anger and told her: "Don't you want to please me?" She later passed out again and woke up hours later.

The woman, who worked for a public-relations firm, said she was intimidated by what she believed was Marsalis' status as a doctor and astronaut, and decided not to go to the police.

"I was scared and I wanted to let it go," she said.

Her husband, whom she met shortly after the date with Marsalis, later took the stand and said she had told him several weeks after they met about the incident but did not mention the man's name.

In November, he was watching a newscast when a report came up about a man who posed as a doctor and astronaut and was facing rape charges. He said he called his wife over to the TV.

"Oh my God! It's Jeffrey!" she said, according to her husband.

He said he then convinced her that she had to go to the authorities.

(Local ABC 6 has more, with a picture and a video.)

In the not-too-distant past, Jeffrey Marsalis would have been regarded as a liar and a con artist, and the women who slept with him as stupid and foolish. (Bear in mind he's charged with rape, not drugging the women.)

Common sense tells me that if you're raped, you know it at the time. In the old days, police and prosecutors looked for physical evidence of a struggle. A two month delay in calling the police in reporting sexual intercourse only after learning the man lied about his accomplishments undercuts the notion that rape is a violent and heinous crime -- and (IMO) challenges the very definition of victim.

This is not to defend lying or misrepresentation in order to obtain sexual favors. What the man did was unquestionably sleazy, and it's unfortunate that so many women fell for his con routine. But that does not transform what happened into a crime of violence, which rape is. If career misrepresentation can supply grounds for a rape charge, where does it end? We can all agree that lying on a resume in order to land a nice job is sleazy and dishonest, and normally the remedy is termination of employment. But suppose female co-workers meet the guy, fall in love with him based on his resume and his job, and have sex with him. Is that rape?

Suppose a guy takes off his wedding ring and claims he's single but he's actually married. (I think such scenarios have probably happened a few times.) Hopeful women go out with him and consent to sex based on their expectations, but he just keeps on lying and they keep on screwing. Should these acts of intercourse be chargable as multiple rapes once the woman learns she's been lied to?

I knew a guy who'd fathered enough children so he'd had a vasectomy, but he didn't want to tell his new girlfriend because he was afraid she'd drop him. Interestingly, this man had been falsely encouraged by the woman's claim that she had no interest in "ever" having children. While he never lied to her and said he was fertile, he finally decided to break the news of his vasectomy. She dropped him like a hot potato and never spoke to him again. When she said she never wanted to have children, she had (gasp!) lied. Why wouldn't acts of sexual intercourse with that lying woman who knowingly misrepresented herself have been rape?

Well? Do I detect a double standard?

Isn't this sexist? When was the last time a woman was prosecuted for lying her way into bed? Would a man be heard to complain that he had no memory of what happened, if he woke up in bed with a woman with whom he never would have had sex had he known she was lying? I think the police would laugh their heads off -- even if he called them the next day. If he waited two months to call the cops, they'd probably think about putting him under observation.

Like it or not, there is a huge double standard. I wish people would quit pretending that there is not.

The biggest problem with all of this is what it's doing to the popular conception of rape. The more people read about prosecutions like this, the more such prosecutions there will be, because it fills a need some people have to become victims in order to vindicate themselves. If acts of sexual intercourse which were once regrettable become grounds for rape allegations, then rape will increasingly be seen not as a crime, but as a game between contestants in a reality TV show.

Hmmm.......

Maybe I shouldn't have said that. I hate to provide sleazebag producers with new ideas.

But what the heck. I don't watch TV, so for all I know, there's already a show called "Your Dream Date from Hell" or something in which it's hard to tell whether the guy is a wonderful professional dream date or a slick con artist.

How many episodes until the "victim" learns "the truth"?

Do I really have to stay tuned?

posted by Eric on 05.22.07 at 08:27 AM





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Comments

Inquirer: "Besides the Philadelphia case, Marsalis is facing a similar drugging and date-rape charge in Idaho."

It seems the drugging IS part of the charges. It's not very clear. But if incapacitated them and forced sex on them, they are victims of rape.

If not, I agree with you.

CJ   ·  May 22, 2007 10:05 AM

If the USA Today account is correct, he was not charged with drug-related crimes because there is no way to prove it:

http://www.usatoday.com/news/nation/2007-05-21-online-dating-rape_N.htm

"Prosecutors say it's difficult to prove the use of date-rape drugs, because they metabolize before victims are alert enough to get a drug screen. Marsalis is not charged with any drug-related crimes."

Of course I agree that drugging people without their knowledge in order to have sex with them is a form of rape.

Eric Scheie   ·  May 22, 2007 10:39 AM

I think you are making too much out of the lying-for-sex argument -- no jury would ever convict on that alone and no prosecutor would be foolish enough to bring charges based solely on that. The case is really based on the woman's testimony that she said "No" and he forced sex upon her. That's rape, clear and simple.

Froblyx   ·  May 22, 2007 11:09 AM

USA TODAY: "A jury could find him guilty of rape if it decides the women were too impaired to consent to sex."

Does that refer to the drug or booze, or is it intentionally confusing the two?

Absent question of impairment, I would agree with your view. Actually, I already agree that the words "rape" and "violence" have been stretched and misused and, therefore, watered down. And I don't doubt a lawyer, somewhere, would still try to make a case based solely on his lies.

But this seems like a problematic case to illustrate that point.

CJ   ·  May 22, 2007 11:15 AM

The conceptual difficulty I have is that it wasn't until the women found out he lied about his career that they decided they had been raped.

Had the women called the cops the next day, I can see the charges. I just don't think the crime of rape should be so flexibly defined as to allow someone to decide two months later that she had said no and that it was rape -- simply because she realized she'd been conned into bed.

The time to say no is during the act, and the time to complain about a serious crime is ASAP. Cases like this invite future mischief, and abuse of the system.

Eric Scheie   ·  May 22, 2007 11:48 AM

I get the impression that they weren't sure what happened, and then when they heard that others had been drugged, they figured it out.

Yes, that's ripe for abuse. But it's plausible.

CJ   ·  May 22, 2007 12:03 PM

The conceptual difficulty I have is that it wasn't until the women found out he lied about his career that they decided they had been raped.

No, we don't know that. What we know is that it wasn't until the women found out that he was accused of rape that they decided to report the crime. There are two differences:

1. Were they prodded to action by the discovery that the man was accused of rape or by the realization that they had been lied to? We don't know.

2. The decision we know is that they reported the crime. Lots of women do not report rapes because of the hassle, the shame, the fear that they won't be believed or that they'll be condemned. It's also true that some women fabricate claims of rape. The only way to handle this is to investigate each case carefully, assuming that the accused is innocent until proven guilty.

Froblyx   ·  May 22, 2007 12:40 PM

If there is a complaining witness, a case can be brought against anyone -- I suppose even a year later. However, I seriously doubt that any jury which understands the presumption of innocence would convict someone of rape under these circumstances.

Eric Scheie   ·  May 22, 2007 12:44 PM

Actually, the reality hardly even matters. With the manner of reporting, others will see it the way Eric did, regardless of the facts on the ground (which always seem reasonable to the people there, no matter how crazy they are). And that is an open door for more of this sort of thing; and I do feel that the shifting nature of the crime of rape means that...well, if you have a spouse, don't get divorced, and if you don't, for the love of god, consider being celibate.

Jon Thompson   ·  May 22, 2007 02:00 PM

I seriously doubt that any jury which understands the presumption of innocence would convict someone of rape under these circumstances.

Please clarify "circumstances". Do you mean the lying-for-sex circumstance or the "if the guy has sex without the gal's consent, it's rape" circumstance?

Froblyx   ·  May 22, 2007 02:18 PM

There will be more and more rape prosecutions for non-violent sex while intoxicated based on after the fact remorse. See M. Simon's earlier post on the prosecution of guys who hired a prostitute who was filmed having a wild time with them. Drunken sex is not rape -- later remorse notwithtanding.

If you get too drunk to knowingly consent to sex, I think you take your chances.

Eric Scheie   ·  May 22, 2007 02:20 PM

"If you get too drunk to knowingly consent to sex, I think you take your chances."

I think it's a gray area. The case that was presented with the lady cavorting with the guys -- that case will be a hard one to win, because she showed herself quite willing. And in practice, it will be difficult to prove that the gal gave no consent -- if she's that drunk, how can we trust her memory? Of course, neither can we trust the guy's memory. In cases like this I would find insufficient evidence and turn the guy loose. However, let's take a more interesting case: the gal and the guy are captured on video, she clearly demurs when he wants sex, then she passes out. In such a case, I'd call it rape if the guy had sex with her while she's passed out.

Froblyx   ·  May 22, 2007 03:19 PM

Frob,

In fact the boys in that case got off.

I'm in contact with the gentleman who did the movie and if he sends me a review copy you will get the whole story.

M. Simon   ·  May 22, 2007 04:53 PM

1. Agreed that the women should have gone to the police immediately after the non-consensual sex, not when they found out that they were laid by a loser.

2. No means no. Can't-say-yes because of inebriation or unconcious also means no. Only yes means yes, all else is rape.

3. A parallel situation: Let's say a woman agrees to make love to her husband in the dark of night. The next morning, she finds out that it wasn't her husband - it was his evil twin! Is this then a case of rape? Just like the fake-astronaut situation, it is only after finding out about the deceptive false identity that the woman goes to the police.

4. If a girl tells you that she is 18 and you both consensually roll around in the hay, but then the cops knock on your door and show you her birth certificate which shows she is 14... You're going to jail because the jailbait lied about her identity, buster. Double standards?

Scott   ·  May 22, 2007 08:27 PM

The women did report the rapes to their friends, family or doctors (as in the case you quoted). But most of them were afraid to call the police because they figured it would be their word against the word of a successful and powerful doctor/astronaut. They also (wrongly) assumed that they were to blame because they must have had too much to drink.

Jessie   ·  May 22, 2007 11:03 PM

Me just gotta say, if people subscribed to complete abstinence from sex before marriage, this wouldn't be an issue.

Not that everyone has to or should practice abstinence, mind you. Just that the tricked-into-sex thing wouldn't be an issue.

Six-month premarital counseling, meeting both sets of parents, going out in groups with friends and cell/nurture groups and update-interviews by pastors tends to weed out the bad businessmen. It's a pretty bug investment for one quickie, drunken or not.

Scott   ·  May 23, 2007 03:53 AM

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