"But s/he said that s/he was eighteen." That this defense will probably be unsuccessful is as old a story as the 1875 case that every first-year law student reads in Criminal Law.1 The story goes something like this. A fifteen-year old, who plausibly looks eighteen, tells a nineteen-year old that s/he is eighteen. Reasonably relying on the juvenile being above the age of consent, the nineteen-year old agrees to engage in intercourse with the fifteen-year old. As any issue-spotting first-year law student might instantly surmise, this is a story about statutory rape2 and the strict liability3 rule that a mistake about the victim's age, even when induced by the victim's false representation, is no defense.4 In "the immemorial tradition of the common law,"5 and in most jurisdictions today, the nineteen-year old will be guilty of statutory rape.6
But this story also depicts another type of rape-with the roles of perpetrator and victim reversed-that has never before been noticed. By one and the same act of intercourse, the fifteen-year old victim of statutory rape is simultaneously a perpetrator of rape. By obtaining intercourse with the nineteen-year old through a false representation of a significant or material matter,7 the fifteen-year old commits rape by fraud.8 The age of one's sexual partner is a crucially significant and material matter when it makes the difference between lawful intercourse and criminal intercourse (statutory rape).9 Exposure to criminal liability for statutory rape, and the possibility of punishment of up to twenty-years' imprisonment,10 or even imprisonment for life,11 is as significant and material as virtually any consequence imaginable.
Fraud, along with force and coercion, is one of the three principal means by which a person can commit rape.12 Obtaining intercourse through fraud, just as through force and coercion, constitutes rape because it vitiates the consent of the victim.13 But the particular focus on consent differs.14 Rape by physical force has generated the well-known position that the victim's affirmative denial of consent entails legally effective non-consent-"no means no."15 In contrast, rape by fraud triggers the issue of whether a victim's fraudulently induced consent to intercourse is legally effective consent. As Stephen Schulhofer predicts, "the next generation of issues [in rape law] will center on when or whether 'yes'... mean[s] 'yes.'"16
The two most prevalent types of rape by fraud transpire in the contexts of medical treatment fraud and marital relations.17 In the typical fraudulent medical treatment case, a patient consents to penetration by a medical instrument (often for gynecological purposes), but instead receives sexual intercourse.18 In the typical spousal impersonation case, a spouse consents to intercourse with someone whom s/he believes is his or her spouse (typically the victim is in the dark and barely awake), but instead receives intercourse with a non-spouse.19 Although the specific rationales for each archetype of rape by fraud may differ, the overarching rationale is that victims give consent to some act, but instead receive something entirely different.20 They consent to an act, but not the act.21
This Article argues that obtaining intercourse by what we term "adult impersonation"-falsely representing one's age as above the age of consent-constitutes rape by fraud. The issue of adult impersonation as rape by fraud has never before been raised.22 Nevertheless, adult impersonation already qualifies as rape by fraud under the existing standards, tests, and rationales for rape-by-fraud liability.23 The victim of adult impersonation consents to one act, but receives something entirely different.24 More specifically, the rationale for criminalizing adult impersonation closely comports with the rationale for criminalizing spousal impersonation. In both, victims consent to innocent and lawful intercourse, but instead receive unlawful intercourse. …