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Consequently, the court granted the man’s motion and the information is dismissed.


At approximately 3:30 a.m., a woman was sleeping in her apartment which she left unlocked because she was expecting her boyfriend to come over. She was then awoken by a knock and believed that it was her boyfriend at the door. She thought that he had forgotten the key she had given to him. She instructed the person to come in believing it was her boyfriend. After the light was turned on, the woman realized that the man was not her boyfriend but was his twin brother.

Afterwards, they talked shortly and the woman told her boyfriend’s twin brother to lock the door when he left. The complainant then went back to sleep but was again awoken at approximately 5:00 a.m. She heard a knock at the door and heard a man voice saying to open the door.

The woman believed the man was her boyfriend because it sounded like him. She got out of bed and, curiously enough, turned off the light located near the door rather than turn it on. She then opened the door and thought it was her boyfriend who entered the apartment, as it was dark and she couldn’t see.

The two spoke momentarily and then the woman returned to bed. The man, who smelt of alcohol, also got into bed next to the woman. She began talking to the man as if it were her boyfriend but was looking away from him.

Subsequently, the two engaged in sexual intercourse. When the act was over, the man asked the woman if it was the best sex she ever had and is she going to tell her boyfriend.

The woman then got out of bed, turned the light on and saw that it was her boyfriend’s twin brother and not her boyfriend that she had sexual intercourse with. She threw the man’s clothes out the door and the man left. Shortly thereafter, the woman contacted the police.

Subsequently, the man was charged with sexual misconduct and arraigned. The man also pleaded not guilty and moves to dismiss the charges filed against him.

Based on records, lack of consent is results from forcible compulsion or incapacity to consent. A person is incapable of consent when he or she is less than seventeen years old or mentally defective or mentally incapacitated or physically helpless. Where the offense charged is sexual Abuse, however, any circumstances in addition to forcible compulsion or incapacity to consent in which the victim does not expressly or impliedly comply in the actor’s conduct may be considered as lack of consent.

Moreover, the lack of consent which forms the basis of the charge against the offender is not claimed to have been by forcible compulsion or the complainant’s incapacity to consent. Rather, the lack of consent results from the complainant’s mistaken belief resulting from man’s alleged fraud that the body she made love with was that of her boyfriend.

At the beginning, the court stated that it should be noted for the man’s attorney that the particular act committed in the present case is distinguishable from seduction. Sources revealed that seduction involves allurement, enticement or persuasion to overcome unwillingness or resistance.

The court further stated that in seduction, the consent is obtained by flattery and deception. The distinguishing feature between seduction and the act at hand is the fact that in seduction the victim knows who she is having sex with. While it is true that the state’s public policy unfavorably views actions for seduction, that view does not apply to the woman’s case which facts do not spell out seduction.

The court also opined that the crime of sexual misconduct overlaps with the crime of rape. Further, sexual misconduct represents the higher degrees of rape and sodomy and it also represents the two lowest degrees of rape.

Subsequently, the court has been unable to discover any authority for the factual circumstances presented in the case where the charge is sexual misconduct. Even where the charge is rape in the classic situation where the woman is forced to submit to sexual intercourse, there is little authority.

Sources revealed that a few courts have indicated that consent to sexual intercourse may be vitiated, and the crime committed where the offender achieved the sexual intercourse by impersonating the woman’s husband. In addition, a former statue includes the situation where the female submits under a belief that the person committing the act is her husband, and this belief is induced by any artifice, pretense or concealment practiced by the accused with intent to induce such belief. The criminal court then cited a previous court case where the offender was convicted of rape where he had sexual intercourse with the complainant as he awoke her from sleeping, the offender pretended to be her husband. It also provided a punishment which stated that any person who shall have had carnal knowledge of any married woman by fraud in personating her husband.

Additionally, the law makes it a crime for a male to have sexual intercourse with a female when he knows that she submits because she mistakenly supposes that he is her husband.

Based on records, a court cannot by implication supply in a statute a provision which it is reasonable to suppose the legislature intended intentionally to omit, and the failure of the legislature to include a matter within the scope of an act may be explained as an indication that its exclusion was intended.

Another basic rule of legal construction is that the courts should avoid judicial legislation. The section provides that the courts in construing ruling sshould avoid judicial legislation. The court does not sit in review of the discretion of the legislature or determine the expediency, wisdom, or propriety of its action on matters within its powers.

As a result, the court has no choice but to dismiss the criminal charge of sexual misconduct against the offender.

The legislature defined lack of consent and intended to exclude cases of fraud or impersonation. Where the legislature intended to extend the definition of lack of consent, it did. Such as, lack of consent as applied to the crime of sexual abuse is extended to any circumstances in which the victim does not expressly or impliedly acquiesce in the actor’s conduct.

For the charge of sexual misconduct, however, lack of consent has been defined by the legislature and does not include the particular circumstances in the case of the woman. Consequently, assuming that the offender did deceive the complainant into having sexual intercourse with him, the offender cannot be found guilty of sexual misconduct.

The court also stated that it should be emphasized that the decision is not concluding that the offender did not do anything wrong if he did indeed deceive the complainant into having sexual intercourse with him through fraud. Instead, what this court is saying is that the district attorney’s office has charged the man with the wrong crime.

In other words, the allegations of fact contained in the accusatory instrument do not contain all of the elements which are required to find the man guilty of sexual misconduct. The city may file another accusatory instrument charging the man with another crime that encompasses the man’s conduct. Consequently, the court granted the man’s motion and the information is dismissed.

Whenever you have contentions with the decision of the court or allegations filed against you, you can seek assistance from Nassau County Criminal Lawyer. You can also ask legal representation from the Nassau County Rape Attorneys of Stephen Bilkis and Associates with matters related to sexual misconduct or sexual offense.

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