“Rape by Fraud: When the Defendant Becomes the Victim”

In the state of Michigan, the crime of statutory rape is deemed a strict liability offense and because of this, even the innocent defendant can face life in prison without ever having the intent to commit a crime. Perhaps no case magnified this greater than the Zach Anderson decision and if not for the efforts of Scott Grabel and his law firm, Lady Justice would’ve truly been blind. Today, we are going to take a look at the topic of statutory rape and provide a better understanding of the crime and explore the defense of “Rape by Fraud” that is rarely argued in the Michigan Judicial System.

In Michigan, when one has engaged in sexual penetration with a minor under the age of 13 they are charged with Criminal Sexual Conduct (CSC) in the first degree. If convicted, the sentence carries a mandatory sentence of 25 years to life in prison. Generally, this occurs when an adult or family member commits the act against a child and that was the intent of the legislature when the statute was crafted. With that said, the court system in Michigan does not readily recognize scenarios when a young person is deceived to have sex with a minor and the court will only examine the physical act. It takes a creative attorney to overcome the statutes in place and that is just what Grabel did on the Anderson case. Due to his efforts and other warriors of justice, there is hope for those that have been lied too and commit a consensual act.

When a prosecutor examines the crime of rape, it will occur in 3 different aspects: fraud, force or coercion but there is also a defense entitled “Rape by Fraud” (Also often referred to as Rape by Deception). This topic is examined in detail in a Northwestern University Law Review Article that was authored by Russell Christopher and Kathryn Christopher in 2007. If a defendant lies to the victim, uses force or coercion, it is clear that there is a plausible charge of rape but what one forgets is what happens when the defendant is actually lied too? What if the defendant was told that the alleged-victim was of age? Should they still be held accountable? In the Zach Anderson case, the defendant was told the young woman was of legal age before any sexual act occurred. It was not until after the fact that Anderson learned the truth and at that point he did not commit any further acts. Despite this, there were attempts to incarcerate him for life and force him to remain on the sex registry. We are left to ponder what happens to the defendant that was deceived? Should they still be incarcerated and have their life altered?

In an interview with Scott Grabel, the attorney provided insight into the Anderson case. Grabel stated, “Anderson was an innocent kid that met someone online. The young lady told Zach she was of age. There was never any intent on my client’s part to break the law and yet his family endured a nightmare. Zach’s case is why I became a criminal lawyer because these are the people that need the greatest amount of constitutional protection. Zach was not a predator, he was an innocent young man and because of the verbiage of statutes, he almost lost his freedom. When a prosecutor takes a case such as that of Zach Anderson they need to realize that the defendant is also a victim. There was no force, there was no coercion and the only fraud came from the young girl that lied about her age. Despite this, the Anderson family were forced to fight for their son’s freedom. At some point, practicality has to overcome legality. Rape by Fraud is a motion that must be made by the criminal defense lawyer in this situation.”

Matthew McManus is the founding partner of Ann Arbor Legal in Ann Arbor, Michigan and has built a reputation as one of the top researchers across the Midwest. When asked about the defense of Rape by Fraud, McManus was quoted as saying, “The Northwestern Law Review Article actually says it best. If a minor used force or coercion to have sexual relations with someone we certainly would not charge the victim with a CSC. Despite this, the courts do not readily recognize the fraud aspect. There is a major difference between not knowing one’s age and someone lying about their age. If someone lies about their age and engages in consensual intercourse how can we in good conscience charge that individual with a crime of rape? If there was a sign that said you have to drive 70 mph and you drove 70 would it be fair to get a ticket because the actual speed limit was 65 despite what you were told? How can we in good conscience blame someone that was provided incorrect information? As officers of the court, we need to place morality into this equation. To destroy a young person that never intended to commit a crime should be a crime itself. There are some amazing prosecutors in our profession and there are others that are more concerned with a conviction rate than preserving justice. To charge someone that truly was deceived is something that makes you question our profession.”

With the Rape by Fraud defense, we truly find a get out of jail card but it is a card that is hidden in the bottom of the deck. The defense lawyer will have to be aggressive and understand that this defense will be their burden but it is a burden they will need to carry to protect the innocent.

William Amadeo is a partner at the law firm Ann Arbor Legal in Ann Arbor, Michigan and a Senior Associate at Grabel and Associates. In addition to his legal duties, he is a staff writer for “The Chronicle News” and owns and operates BAT Tutoring in Lansing, Michigan. He can be reached at: Amadeo@McManuspllc.com or Williamamadeo@Grabellaw.com. To learn more about Scott Grabel and his firm Grabel and Associates, visit their website at: https://www.grabellaw.com/.

101 NW U.L. Rev. 75 (2007).

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