She had no idea? At all? The size was exactly the same? Chest hair? Hair? Everything? Was she still asleep?

Even charging fraud is a bit of a stretch since apparently the brother didn't say anything, just climbed into the bed. Wouldn't fraud require some sort of active deception? Or is not identifying himself enough?

This is what we call a tough case. You have to consider the slippery slope of saying rape = consent obtained thru fraud.
If you think consent obtained through fraud is always rape, then these examples are all rape: where the guy said "I love you"/"yes I am a doctor"/or "why yes, I am a vegetarian also a super cool artist! and I hate George Bush" -- and lied.
OR, where the woman said "yes I love you" and lied -- making her the rapist of the guy.
So -- do we really want courts delving into all that? To say these are crimes of rape punishable by 20 yrs. in the pen is harsh. And usually both parties have told some or many lies to the other!

It was three in the morning. Especially if she is a deep sleeper, I think not realizing it wasn't her boyfriend is well within the realm of possibility.

Also, the article states that, "If the Legislature wants to make sex through fraud qualify as rape, it should follow the lead of several other states -- including Alabama, California, Michigan, and Tennessee -- and change the law, the court said." It wasn't the judges' job to rule on this according to a feeling of what is right or wrong, but according to MA state law, and it seems like they made the "correct" ruling in that sense.

Interesting legal conundrum. On the one hand, this case seems despicable. On the other hand, people often trick others into having sex with them under false pretenses.

"Of course I want to marry you ... when the time is right."

"I promise I won't tell anyone."

"You're going to star in my next movie."

"I've been tested, baby, and I'm clean."

"I'm on the pill, so no worries."

Should the law consider all of these cases rape, and if not, how do you decide what kind of fraud counts and what doesn't?

Isn't it illegal across the board to use the identity of another person for any kind of gain?

It's not a "tough case" AT ALL. IT WAS OBVIOUSLY RAPE. The state law says rape can only be committed by force and the Massachusetts supreme court urged the legislature to change this law when making their ruling.

#5: Those cases aren't rape (but may be other crimes) because both people agree to have sex with each other. It's very very very simple.

No, I get what Sean's saying. All of those quotes in certain contexts could be fraud. You know, if they're lies.

And nobody's ever said something they don't mean to get laid? Believe me, most of us wouldn't be here if that were the case, and neither would our future progeny. (Except me. I'm fixed, I swear.)

Maybe the guy wasn't "impersonating" his brother at all. Maybe he thought she was into him, and assumed she knew who he was the whole time.

Wonder how they're gonna spin this one in the family's holiday newsletter this Christmas...

@7:
The woman consented to having sex with the brother, so what exactly is the litmus test you propose? Do the following count as rape?

"Hmmm, I guess I do look kind of like Ted Kaczynski, but I can assure you I've never even been to Montana."

"I'm going to tell you a secret, sweety - I'm Thomas Pynchon. Yes, THE Thomas Pynchon."

Why does this case have to rest on fraud? The victim in this case consented to have sex, but not with the guy who actually fucked her. That sounds like rape to me.

What about furniture rape? You know this poor ottoman wasn't asking for any of this!!!

http://www.youtube.com/watch?v=-k98bRUOb4g

@4 I totally agree. The law was clear in this case, and really, just about every state should update their rape laws more than once a century to take things like this into account.

"Why does this case have to rest on fraud? The victim in this case consented to have sex, but not with the guy who actually fucked her. That sounds like rape to me."

What if the alleged rapist may not have fully understood who she thought he was?

I will not defend sex through fraud, which is obviously a profoundly shitty thing to do and should be in violation of something or other. But it doesn't seem to me to fit the traditional legal definition of rape.

I think calling this rape is overboard based on this scenario: say the brother had no intention of sleeping with her but just passed out in bed. 3AM arrives, girlfriend wakes up next to the guy she thinks is her bf and decides to get frisky. He's never the wiser that she doesn't really know who he is and she cries rape the next morning. consent is consent. Clearly deception is low and immoral, but rape? I think not.

I think calling this rape is overboard based on this scenario: say the brother had no intention of sleeping with her but just passed out in bed. 3AM arrives, girlfriend wakes up next to the guy she thinks is her bf and decides to get frisky. He's never the wiser that she doesn't really know who he is and she cries rape the next morning. consent is consent. Clearly deception is low and immoral, but rape? I think not.

I think calling this rape is overboard based on this scenario: say the brother had no intention of sleeping with her but just passed out in bed. 3AM arrives, girlfriend wakes up next to the guy she thinks is her bf and decides to get frisky. He's never the wiser that she doesn't really know who he is and she cries rape the next morning. consent is consent. Clearly deception is low and immoral, but rape? I think not.

I think calling this rape is overboard based on this scenario: say the brother had no intention of sleeping with her but just passed out in bed. 3AM arrives, girlfriend wakes up next to the guy she thinks is her bf and decides to get frisky. He's never the wiser that she doesn't really know who he is and she cries rape the next morning. consent is consent. Clearly deception is low and immoral, but rape? I think not.

I think calling this rape is overboard based on this scenario: say the brother had no intention of sleeping with her but just passed out in bed. 3AM arrives, girlfriend wakes up next to the guy she thinks is her bf and decides to get frisky. He's never the wiser that she doesn't really know who he is and she cries rape the next morning. consent is consent. Clearly deception is low and immoral, but rape? I think not.

I think calling this rape is overboard based on this scenario: say the brother had no intention of sleeping with her but just passed out in bed. 3AM arrives, girlfriend wakes up next to the guy she thinks is her bf and decides to get frisky. He's never the wiser that she doesn't really know who he is and she cries rape the next morning. consent is consent. Clearly deception is low and immoral, but rape? I think not.

I think calling this rape is overboard based on this scenario: say the brother had no intention of sleeping with her but just passed out in bed. 3AM arrives, girlfriend wakes up next to the guy she thinks is her bf and decides to get frisky. He's never the wiser that she doesn't really know who he is and she cries rape the next morning. consent is consent. Clearly deception is low and immoral, but rape? I think not.

I think calling this rape is overboard based on this scenario: say the brother had no intention of sleeping with her but just passed out in bed. 3AM arrives, girlfriend wakes up next to the guy she thinks is her bf and decides to get frisky. He's never the wiser that she doesn't really know who he is and she cries rape the next morning. consent is consent. Clearly deception is low and immoral, but rape? I think not.

I think calling this rape is overboard based on this scenario: say the brother had no intention of sleeping with her but just passed out in bed. 3AM arrives, girlfriend wakes up next to the guy she thinks is her bf and decides to get frisky. He's never the wiser that she doesn't really know who he is and she cries rape the next morning. consent is consent. Clearly deception is low and immoral, but rape? I think not.

I think calling this rape is overboard based on this scenario: say the brother had no intention of sleeping with her but just passed out in bed. 3AM arrives, girlfriend wakes up next to the guy she thinks is her bf and decides to get frisky. He's never the wiser that she doesn't really know who he is and she cries rape the next morning. consent is consent. Clearly deception is low and immoral, but rape? I think not.

I think calling this rape is overboard based on this scenario: say the brother had no intention of sleeping with her but just passed out in bed. 3AM arrives, girlfriend wakes up next to the guy she thinks is her bf and decides to get frisky. He's never the wiser that she doesn't really know who he is and she cries rape the next morning. consent is consent. Clearly deception is low and immoral, but rape? I think not.

This case is aweful, but unless someone has a specific proposal for a new definition of rape that captures just this bizarre one in a million scenario and not the dozens of much more common but less egregious scenarios that involve mistaken identity, then the law should not change.

It seems to me that the system worked just as it is supposed to: The MA Supremes ruled acording to the law and, in their ruling, urged the legislature to update the law.

It may be unfortunate for the woman wronged, that's life. Future generations will benefit.

I wonder if it's a crime if she tricks him into letting her cut of his dick?