Iowa Supreme Court’s sex-by-fraud decision comes down to the meaning of ‘consent’

By: Rox Laird on May 7th, 2018

The Iowa Supreme Court’s May 4 ruling upholding the sex-abuse conviction of a man who faked his identity turns on the question of consent. The question is not whether the woman consented to having sex, however, but the question is with whom.

Michael Kelso-Christy created a phony Facebook account to arrange a sexual encounter with a woman identified in the case as S.G. by impersonating her former high school classmate. Kelso-Christy enticed S.G. into meeting him at her home and to being blindfolded when he arrived. She discovered Kelso-Christy’s deception after he quickly exited the house without revealing his identity and she contacted the real classmate she thought she was meeting.

The Court, in a 4-2 decision written by Justice Mark Cady joined by Justices Edward Mansfield, Thomas Waterman and Bruce Zager, rejected Kelso-Christy’s argument that his conviction should be overturned because the sex was consensual. Deceptions such as Kelso-Christy perpetrated on his victim do not establish consent, the Court held. (Justice Daryl Hecht did not participate in the case.)

Kelso-Christy was convicted of burglary with intent to commit sexual abuse, which is defined in Iowa law as a sex act “done by force or against the will of another.” The “against the will” standard protects individuals from nonconsensual acts, the Court said, and the question becomes whether consent is meaningful.

Kelso-Christy argued that it could not be proved that he intended to commit sexual abuse because S.G. consented to sex. But the majority disagreed, saying that because of Kelso-Christy’s deception she did not give meaningful consent. The Court cited an earlier ruling that said consent may be negated “if an act is done that is different from the act the defendant said he would perform.”

Kelso-Christy knew his victim intended to have a sexual encounter with another man, but not with him, Cady wrote. “Rather, Kelso-Christy knew S.G. wished to have sex with someone else and simply decided that fact gave him license to proceed, regardless of S.G.’s actual feelings or preferences. Because it has long been the law in Iowa that consent to sex with one man cannot imply consent to sex with another, Kelso-Christy could not have believed S.G. consented to a sexual encounter with him.”

Justice David Wiggins filed a dissenting opinion joined by Justice Brent Appel.

Wiggins disagreed with the majority’s conclusion that Kelso-Christy’s intent to commit sexual abuse was proved, but his primary reason for departing from the majority is that, in his view, the statute under which Kelso-Christy was convicted does not address sexual abuse by fraud or deception.

“As a caveat, I emphasize that I am not saying the defendant did not commit a wrongful act,” Wiggins wrote. “Rather, because the allegations of fact do not contain all the necessary elements to find Kelso-Christy guilty of sexual abuse, the State could have charged the defendant with another crime.”

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On Brief is devoted to appellate litigation, with a focus on the Iowa Supreme Court, the Iowa Court of Appeals, and the United States Court of Appeals for the Eighth Circuit.
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