Thursday, 4:30 PM
State high court upholds law that says sex obtained fraudulently is not rape
By Jonathan Saltzman, Globe Staff
A Hampden County man who allegedly tricked his brother's girlfriend into having sex with him by impersonating his sibling in the middle of the night cannot be convicted of rape, the state's highest court ruled yesterday in a controversial ruling that affirms the court's long-held view that sex obtained through fraud is no crime.
The Supreme Judicial Court unanimously ruled that a judge should have dismissed the rape charge against Alvin Suliveres, of Westfield, because Massachusetts law has for two centuries defined rape as sexual intercourse by force and against one's will and that it is not rape when consent is obtained through fraud.
If the Legislature wants to make fraud an element of rape, it should follow the lead of several other states and change the law, the court said. Lawmakers have taken no steps to do so, the court added, since the SJC issued a seminal ruling in 1959 about the use of trickery to obtain sex.
Brownlow M. Speer, a state public defender who represented Suliveres in the challenge, said the decision was "absolutely impeccable" in its reasoning. His client, who works for a company that makes wooden pallets and has been free since his trial in March 2006, ended in a hung jury, denies that he impersonated his brother and insists that the sex was consensual.
But Wendy Murphy, a former Middlesex County prosecutor who teaches at the New England School of Law and advocates for victims of violence, condemned the ruling as regressive and steeped in antiquated views about sex.
"The message that the court sends today is, in essence, that a man's ability to obtain sex through fraud with regard to who he is is more important than a woman's fundamental right to control her own body," said Murphy. She added, "It is impossible -- as a matter of fact and law -- to consent to sex with the wrong person."
The ruling was written by Justice Judith A. Cowin, one of two women on the court.
The unusual case dates to a night in January 2005. The woman had been living with her boyfriend, Duane Suliveres, for several years in a furnished room in the basement of his father's home, according to the defense brief. His brother, Alvin, had been staying in another room for several months.
The incident happened when Duane was working the night shift at an envelope manufacturer in Westfield, the brief said. At 3 a.m., the woman later told authorities, she was awakened by the sound of the door opening in the dark room and said, "Duane, why are you home so early?" but heard no response. Then, she said, she felt someone who she thought was her boyfriend get into bed, remove her clothes, and climb on top of her. They had sex for about 10 minutes, she told police.
After he got up, he opened the door and she saw in the light from the hallway that it was Alvin Suliveres, she told authorities. She contacted the police shortly afterward.