The Odd Legal Ramifications Of Dmitri Smerdyakov

Recently there has been an internet kerfuffle about a scene in Amazing Spider-Man #603, wherein the Chameleon, while impersonating Peter Parker, has sex with Peter’s roommate Michelle (because she of course believes him to be Peter). A number of fans have called out writer Fred Van Lente for using rape as a plot device in a comic book. So people naturally emailed me (a lot of people), all to the general gist of “hey, is that rape?”

The answer is: maybe.

There are certainly circumstances where deception can be an element of rape. As someone at scans_daily points out, “Heck in my 1L Criminal Law casebook there was a case where a doctor tricked a patient into having sex with him as part of her treatment. The courts found that it was indeed rape.”

However, the common element in cases where deception is an element of rape is that the deception in and of itself can impair the ability to consent. Most criminal law jurisdictions operating under the common law have a “doctor tricks patient into sex for medical reasons” case, because every jurisdiction has a few asshole doctors. But the reason that deception was considered rape was because convincing someone that having sex with you is necessary for the sake of your health or indeed your life makes it essentially impossible to refuse; it’s the verbal equivalent of a knife to the throat.

On the other end of the spectrum, most legal jurisdictions have considered anti-pickup-artist legislation designed to criminalize lying to women for the purposes of getting laid, and so far as I know nobody’s ever gotten past the consideration stage for one simple reason: it’s an incredibly paternalistic idea, and as a law essentially proposes that women can’t be considered able to tell truth from fiction. That’s an incredibly dangerous precedent to put into law, and there’s no real way to put together anti-pickup-artist legislation without that precedent that I (or most people) can see.

So, the most likely rule for the forseeable future in most jurisdictions is that lying to get laid isn’t going to be rape unless it can reasonably vitiate someone’s ability to consent. Not merely trick someone into consenting (which, while loathsome, is legal): it has to essentially remove their ability to consent altogether. Under this standard, can what the Chameleon did be considered rape?

And again, the answer is: maybe. If you tried this, it would depend on whether you got a judge who treated what the Chameleon did as a more advanced, evolved form of pickup line, or one who went with the idea that shapechanging into someone Michelle had already slept with removed her ability to reasonably consent to sex. It’s a very fine line, primarily because regardless of Dmitri having imitated Peter, I don’t think you can fairly say that Michelle would have necessarily slept with Peter (and to be honest, if it had actually been Peter in that situation, I seriously doubt he would have taken the actions the Chameleon did that led to the sex).

On the other hand, of course, you can phrase it like this: “would Michelle have slept with the Chameleon if she’d known it was him rather than Peter?” The answer here is of course “probably not,” but you can’t just say “well, she’d never sleep with the Chameleon because he is a bad dude.” Presumably the Chameleon would not say up front “by the way, I’m a super-villain,” or make it obvious to her that he was such (IE, by wearing his creepy white mask). Plenty of criminals “forget” to mention their records and/or lifestyle when they sleep with people, and we’re not going to reasonably call that rape. How about asking if the Chameleon – disguised as somebody else Michelle did not know – met her in a bar, what if she slept with him then? We wouldn’t call that rape at all.

But then again, hypotheticals like that get away from the core of the problem, which is that in this specific situation, Michelle would presumably not have been willing to sleep with anybody other than Peter (IE, in the apartment at that time and place), and that although sleeping with Peter wasn’t a guaranteed outcome it was still a possible one whereas for any other person it was probably impossible.

I could go back and forth all day on this, so here’s my bottom line. It was skeevy and gross, to be sure, and it probably shouldn’t have been in the comic given its general tastelessness. But given that I don’t think you can prove that Dmitri vitiated Michelle’s ability to consent, I don’t think you can call it rape.

UPDATE: David from Shifting Spanner mails:

I’ve only gone to this effort because I knew it wasn’t the law in Australia, and was pretty damn sure it wasn’t the law in the States or Canada (but don’t have the database access for enough case law in either).

The mistaken identity scenario is specifically mentioned as vitiating consent in (just as examples) the Crimes Act 1958 (VIC) s.36 and the Crimes Act 1900 (NSW) s.61HA(5)(a). I’m a bit baffled as to why the Canadian Criminal Code doesn’t mention it under any of the definitions of consent, although it is a statute sufficiently prudish to define sexual intercourse as involving “penetration to even the slightest degree, notwithstanding that seed is not emitted”. To be fair, it’s not specifically mentioned in the NY Penal Code, either.

So I think the answer on Smerdyakov has to be guilty. This wasn’t a pick-up artist situation where he lied only about what sort of person he was or what his name was. Smerdyakov deceived Michelle in a way that said ‘You know who I am’. It’s a fundamentally different deceit to ‘I know you don’t know me, but I invented foot massages and I’m awesome in the sack’.

This is interesting because Australia is the only major common-law jurisdiction that I’m not that familiar with. Now, I obviously argue from a Canadian context. Our Criminal Code‘s relevant provision states that consent is vitiated when ““the accused counsels or incites the complainant to engage in the activity by abusing a position of trust, power or authority“. There’s no explicit provision for mistaken identity.

In a Canadian context, the question then turns to whether Smerdyakov’s imitiation of Peter counts as “one of trust,” and although Smerdyakov’s act was morally repugnant, I still don’t think it would qualify because I think claiming Peter’s position vis-a-vis Michelle as “one of trust” just doesn’t fly: at the time of the deed,
Peter and Michelle had been roommates for, what – less than a month? Had sex together once while drunk? That’s clearly not intended under the statute. Granted, if a judge was offended enough by Smerdyakov’s act they could easily stretch the definition and create a precedent.

However, that mention of Ben Reilly intrigues me, because up until now I’d been working under the stupid assumption that Smerdyakov’s superpowers weren’t real-world duplicable, but of course they are: an identical twin can assume his twin’s identity for the purposes of sexual deceit. So I’ve started looking into whether an identical twin has ever been accused/convicted of sexual assault in this context, because… well, because it’s interesting, really.

UPDATE 2: In the sort of timeliness that makes you wonder if someone is making a movie about your life, a twin-posing-as-other-twin-for-sex who was then arrested for rape? Just a couple weeks ago. I shall keep an eye on this case to see how it develops.

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