Does ‘Catfishing’ Mean Consent? The Iowa Supreme Court Says No.

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Analysis Law and Policy

Does ‘Catfishing’ Mean Consent? The Iowa Supreme Court Says No.

Lisa Needham

In a case handed down earlier this month, Michael Kelso-Christy deceived a woman into having sex with him by impersonating another person she knew on Facebook.

The case of Iowa v. Michael Kelso-Christy, handed down from the Iowa Supreme Court earlier this month, has a terrible—and complicated—story behind it. It involves Facebook, false impersonations, and how burglary statutes are interpreted. But it in the end, it results in the court upholding Michael Kelso-Christy’s conviction stemming from a sexual assault—and points the way toward an expansion of laws about consent.

Back in April 2015, Kelso-Christy apparently hit upon the idea of impersonating an individual identified as “S.P.” in the court filings, and began contacting women that went to high school with that person. Kelso-Christy sent direct messages to the women, saying that S.P.’s original account had been hacked and he had needed to create a new account. Posing as S.P., he’d then try to get those women to send him nude pictures. He’d also suggest they have sex.

At least one woman, S.G.—the victim in this case—responded to these messages and began corresponding with Kelso-Christy, thinking he was S.P. After repeated entreaties to provide Kelso-Christy with nude pictures of herself, she did so. She also eventually agreed to have sex with Kelso-Christy, thinking he was S.P. He suggested that she blindfold herself, and he would restrain her with handcuffs, and she agreed to this as well.

On the day of the assault, S.G. blindfolded herself and waited for the person she believed was S.P. to arrive. When Kelso-Christy got there, he almost immediately handcuffed her, had sex with her, and left—all without speaking, so that S.G. wouldn’t know he wasn’t S.P. When Kelso-Christy departed, he left S.G blindfolded and handcuffed.

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After she was able to free herself, S.G. saw a text message from Kelso-Christy, still posing as S.P. He said his brother was in the hospital, and that’s why he had to leave abruptly. He then stopped responding to her messages and deactivated the fake S.P. Facebook account. S.G. then contacted the sheriff and they opened an investigation.

The sheriff’s office determined that Kelso-Christy was the man who had deceived and sexually assaulted S.G. When they located him and searched his house, they found a list of women’s names, including S.G.’s. Kelso-Christy was then charged with burglary in the first degree and sexual abuse in the third degree.

Here’s where things get a bit complicated, legally. First, there was a plea agreement of sorts: The state agreed to reduce the charges against Kelso-Christy to burglary in the second degree, while he agreed he wouldn’t contest a ten-year prison sentence if he was found guilty of that charge. This still gave Kelso-Christy a chance to fight the remaining charge, so he filed a motion to dismiss it.

It might seem strange that this case turned on a burglary charge and that Kelso-Christy could still essentially be convicted for his rape of S.G., even though he no longer faced a sexual abuse charge. That’s because of the complex nature of burglary statutes.

In common parlance, we think of burglary as someone breaking into your home to steal your possessions. But that isn’t what it typically means, legally. Rather, it is when you enter someone’s residence when you have no right to be there and you intend to commit a felony. Put another way, the crime of burglary doesn’t just mean you want to get inside someone’s house uninvited or by breaking in. It means that you want to do that and commit a different crime while you’re inside. Often, that crime is felony theft—taking someone’s possessions worth more than $1,000 without permission—or robbery, assaulting someone when you intend to commit the crime of theft as well.

However, the accompanying felony doesn’t have to be related to stealing. Gaining entrance to someone else’s residence with the intent to sexually assault them counts as a burglary too. So, for Kelso-Christy to walk free on this case, he had to prove that he didn’t enter S.G.’s home with the intent to sexually assault her.

It didn’t work. Kelso-Christy was found guilty at the trial court level and sentenced to 10 years in prison. He appealed, and lost at the Iowa Court of Appeals as well. The Iowa Supreme Court agreed to take the case, and again ruled against Kelso-Christy.

In order to do so, the court had to do a deep dive on what it means to consent, as far as the law was concerned. Under Iowa law, the intent of the defendant matters. Did Kelso-Christy intend to engage in sex without the consent of S.G.? According to Kelso-Christy, his deception didn’t negate her consent. He posited that any misbehavior on his part was limited to inducing her consent via fraud—by pretending he was S.P. But, he argued, she consented to the sex act itself, without any fraud.

At root, Kelso-Christy’s defense was deeply repulsive: If a woman consents to sex with one person, she consents to sex with a different person. Her consent is fungible, transferable.

Thankfully, in this case, the Iowa Supreme Court was able to cut through a complicated web of how fraud is determined and to rely on a simple principle:

[C]onsent to engage in a sexual act with one person is not consent to engage in the same act with another actor. Deception in this context is not collateral in any way, but goes to the very heart of the act. When a person is deceived as to who is performing the previously consented to act, the person ultimately experiences an entirely separate act than what was originally agreed to.

Iowa courts, among others, have held to this simple principle for years in other circumstances: Having consented to sex with one person, you don’t consent to sex with multiple people. That principle, the court found, doesn’t magically change when you deceive someone into thinking they’re having sex with the wrong person.  

The Iowa Supreme Court also looked at the lengths to which Kelso-Christy went to deceive S.G.: a fake Facebook account, making sure S.G. was blinded and handcuffed, and—perhaps most important—leaving her blindfolded and handcuffed when he departed, ensuring she couldn’t discover his deception and flee.

Depressingly, Justice David Wiggins dissented, zeroing in on language in the Iowa statute governing sexual abuse. That language limits sexual abuse claims to acts “done by force or against the will of the other.” That language, he argued, isn’t broad enough to encompass sexual abuse by deception, which is what happened here. Wiggins even went so far as to compare this to what he called “misrepresentation as to the whole in the course of seduction.”

That sort of misrepresentation occurs when, say, you insist you’re a famous producer and can get someone an acting role if they sleep with you, but in actuality you’re an intern and have no sway whatsoever. Whether or not that behavior implicates or compromises consent is also a problem—but it certainly isn’t the same as convincing a person you are someone else entirely and ensuring they won’t find out to the contrary because they are blindfolded and handcuffed.

While national conversations about #MeToo and consent are incredibly vital, it’s important to remember that state courts (and state legislatures) do critical work in expanding sexual assault protections because they’re often based solely in state law. This case is a small step, and it only governs Iowa, but it is an incredibly welcome one.