@firefly,
This is the crazy kind of world Firefly would like us all to live in.
http://www.nationalpost.com/news/canada/Infidelity+question+consent/3576880/story.html
Infidelity and the question of consent
ISTOCKPHOTO
If you have sex under false pretenses, have you been legally violated? A court wades into the fray of love, heartbreak & deception
Comments Twitter LinkedIn Digg Buzz Email Kathryn Blaze Carlson, National Post · Friday, Sept. 24, 2010
In the moment, the sex felt consensual — welcomed even. In retrospect though, Minki Basu believes she was violated, her consent allegedly negated by a deception so “morally reprehensible” that each instance of intercourse with Kaz Akbar “constitutes a separate sexual assault.”
Mr. Akbar — described in public civil-court filings as a husband and father who “succumbed to the all-too-common human frailty” of indulging in an affair — assumed a fake identity on an Internet dating site and then had a five-month relationship with Ms. Basu using the name “Kam Ali.”
Ms. Basu alleges that the “Kam Ali Lies,” as they are collectively known in the court documents, were “part of a scheme to seduce [her]” and “secure her consent.” Her claim, regardless of whether it is settled or heard by a jury, will inevitably feed a thoughtful debate about what constitutes sexual assault.
Legal experts are already asking, if the “Kam Ali Lies” are deemed to constitute fraud and negate consent, then what other deceptions could undo consent? Lying about age? Employment? Assets? Religion?
They ultimately ask: Should the court wade into the fray of love and heartbreak, or is this murky territory better left to the domain of “caveat amator” and “lover beware”? While the nature of Ms. Basu’s claim is believed to be unprecedented in North America, it is not the first time the courts have been asked whether deception can annul sexual consent.
There was the recent Ontario Court of Appeal case involving twins, where a woman’s sexual intercourse with the wrong brother was upheld as non-consensual because she was “duped.” And there was the high-profile 1998 Supreme Court of Canada case involving a man who failed to disclose his HIV status and whose unprotected sex with two women was ruled non-consensual as it was obtained through fraud.
And then, over the summer, the notion of consent was catapulted into international headlines: An Israeli court convicted a Palestinian man of “rape by deception” after he pretended to be Jewish and had sex with a Jewish woman.
“There has been a trend toward greater disclosure, particularly in consent cases,” said Ryan Stewart Breedon, Ms. Basu’s Toronto-based lawyer.
And Mr. Breedon — paid for his work in this case by money the Toronto woman gleaned from selling her late mother’s gold — said the $250,000 counterclaim for the tort of sexual assault is simply part of this “natural development” of the law of consent.
Still, the allegations — which are outlined in a counterclaim to a defamation suit filed by Mr. Akbar, which accuses Ms. Basu of launching an online “campaign of character assassination against him” after he revealed the truth — break new ground.
“It’s a novel claim, to my knowledge,” said Steven Skurka, a criminal lawyer and legal analyst, adding that the burden of proof in this Ontario
Superior Court of Justice case is lower because it is a civil claim.
Beyond the legalities, there are also cultural repercussions tied to Ms. Basu’s claim, one Toronto-based clinical psychologist and university lecturer fears.
“To me, this is almost an insult to those who have been sexually assaulted,” said Dr. Oren Amitay, adding that deception “happens all the time” in the mating game. “She was used, she was lied to — and so was about 90-something percent of the female population.”
Dr. Amitay said “true sexual assault” is accompanied by trauma and sometimes flashbacks of a terrorizing situation — as is perhaps true of the recent alleged gang rape of the 16-year-old girl at a British Columbia rave, he said. Dr. Amitay said Ms. Basu’s trauma is “quite different” and is more about a “feeling of ‘I was lied to. I was made a fool of.’”
However, Ms. Basu told the National Post this week that the deception ran so deep that she feels “completely violated” — as though she had been with an “imposter.”
“I gave my consent to someone named ‘Kam Ali,’ who is a bachelor, who was looking to be in a serious relationship,” she said in an interview at the Toronto hotel where she works. “I did not give my consent to someone whose name is Kaz Akbar, who is a married man, who has children.”
In Mr. Akbar’s defence, his lawyers argue that “at no time was Minki misled in any way that was material to her decision to have intercourse with Kaz” and that “Minki would have had sexual intercourse with Kaz even if she had known of his correct identity.”
Furthermore, Mr. Akbar “denies that Minki has suffered damages as alleged.”
Meantime, Ms. Basu’s lawyer argues that the nature of the deception does, in fact, go “to the heart of [Ms. Basu’s] consent,” and said he does not fear that her claim will trivialize sexual assault.
“The misrepresentation has to be something that would reasonably go to whether [the person] would give consent or not,” Mr. Breedon said. “If a man says he drives a Lexus and he drives a Ford instead, that’s probably not enough.”
In the instance of the Palestinian man in Israel, the judge ruled that the misrepresentation was indeed material to the woman’s consent and said she “would not have co-operated” had she known the truth.
“The court is obliged to protect the public interest from sophisticated, smooth-tongued criminals who can deceive innocent victims at an unbearable price — the sanctity of their bodies and souls,” the judge wrote in his ruling.
Nearly a decade prior, in the 1998 Supreme Court of Canada case involving the man who failed to disclose his HIV status, the court heard that deceptions have from “time immemorial” been the by-product of sexual encounters and that “thus far in the history of civilization, these deceptions, however sad, have been left to the domain of song, verse, and social censure.”
For Ms. Basu, however, no song or verse will soothe the pain she said nearly caused her to take her own life. She said she fell in love with ‘Kam Ali’ — the man with whom she visited Polson Pier, dined at her favourite Korean restaurant, and for whom she especially bought orange linens because that “was his favourite colour.”
And while she said nothing will ever fully repair her trust or her heart, she hopes her case will raise awareness about the impact of deception.
“A person can steal $5 from me and I can call it a crime,” she said, as she fiddled with one of her mother’s diamond earrings, which will be sold if the gold runs out. “But if a person has stolen my emotions, my trust, my soul, everything ... that is not a crime? How is that justified?”
Mr. Akbar’s attorney, Mark Skuce, said in an email that his client “disputes the allegations contained in Ms. Basu’s court filings, and is confident that he will succeed in his very strong defamation claim against her.”
National Post
Tools
-+ Change text size
Print
More On This Story
As many as a dozen witnesses watched B.C. gang rape
Divorcing spouses quit Facebook in favour of privacy
Related Topics
Kaz Akbar
Kam Ali
Civil Trials
Crime
Ontario Court of Appeal
Get the National Post newspaper delivered to your home
What do you think?
New to the site?
To leave a comment, you need to Sign Up.
Already a member?
Read more:
http://www.nationalpost.com/news/canada/Infidelity+question+consent/3576880/story.html#ixzz123JiXUkh
